TORRUELLA, Chief Judge.
Appellants are members of the Puerto Rico Real Estate Examining Board who have been found personally liable in damages for violating the constitutional rights of appellee Joanna DiMarco-Zappa in connection with her application for a real estate license. We find appellants' arguments as to qualified immunity and § 1983 liability respectively unpersuasive or waived at the district court level. We also find that the district court correctly applied the relevant law as to the availability of compensatory and punitive damages, and did not abuse its discretion as to the amount of those damages. As a result, we affirm the district court decision in all respects.
Although the district court provided an extensive summary of the procedural history of this case, Zappa v. Cruz, 30 F.Supp.2d 123, 124-26 (D.P.R.1998), as has this Court, Harris v. Rivera Cruz, 20 F.3d 507, 509-10 (1st Cir.1994), we revisit it at some length due to the waiver questions raised by the district court decision.
A. Early Case History
In April 1988, appellee Joanna DiMarco-Zappa ("DiMarco") joined a pending lawsuit
In March 1989, the district court issued a preliminary injunction requiring the Board to continue offering the exam in both Spanish and English, and to insure that the two versions were equivalent. Harris v. Rivera Cruz, 710 F.Supp. 29 (D.P.R.1989). In response to an August 1989 pre-trial order, DiMarco provided an analysis indicating differences between the English and Spanish versions of the exams, as well as a showing of mathematical errors on the grading of her individual exam. Id. The Board did not rebut these allegations. Id. The district court granted a permanent injunction requiring the Board to continue giving an equivalent English exam. It then noted in a March 22, 1990 "Status Conference Order" that "the only remaining issue is whether the plaintiffs passed the exam." In a subsequent order, issued April 19, 1991, the court concluded that "[DiMarco has] passed the real estate examination." The court stated: "because both parties have previously agreed that this was the only remaining issue in this case, Judgment shall be entered accordingly." The court premised its order on DiMarco's mathematical analysis, including adjustments for mistranslations and ambiguities in the English-language test. No explicit finding was made as to whether an equal protection violation had occurred, whether defendants incurred personal or official liability under § 1983, or whether DiMarco was entitled to monetary damages. The order also did not indicate whether the judgment was final as to all claims, or if the case was finally complete. Harris, 20 F.3d at 509.
Although DiMarco was forced to file several motions for contempt to gain compliance, the Board ultimately issued her real estate license in August 1992. DiMarco then requested a date for a trial on damages. The district court, relying on a May 11, 1993 status conference and on the previous March 22, 1990 Status Conference Order, concluded that "[j]udgment was entered in this case based on a settlement between the parties, without the imposition of damages," and that DiMarco's failure to appeal the judgment resulted in closure of the litigation without any damages consideration. DiMarco appealed, seeking an opportunity to pursue her damages claim. This Court reviewed, and found first that "it is not possible to tell for certain whether DiMarco's claim for damages was settled or waived on March 19,
B. Post-Remand Procedural History
On remand, the district court held a hearing to determine whether DiMarco had in fact waived her right to damages. The court concluded that the Board failed to carry its burden based on its failure to produce evidence of any waiver agreement or consideration for a waiver. The district court then set a bench trial
On December 2, 1996, appellants filed a response to the district court request, in which they argued that "defendants in the instant case acted only in their official capacity" and that "the appearing defendants were not personally involved in the events that gave rise to the complaint." They also claimed that they were entitled to qualified immunity because "the law regarding the constitutional validity of restricting official documents to any given language was unclear and undecided," and thus the constitutional right at issue was not clearly established under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The Court heard evidence and arguments as to damages on September 18, 1997. The hearing focused entirely on the question of damages, with no evidence presented as to whether defendants were personally involved in the alleged discrimination.
C. The District Court Decision
The district court first concluded that the Eleventh Amendment barred damages claims against appellants in their official capacities. Zappa, 30 F. Supp.2d at 126-27. It then turned to the question of qualified immunity. In an extensive section, the court reprimanded appellants for "muddl[ing] the right at issue in this case — the right to equal protection of the law — with laws `regarding a state's prerogative in establishing an official language in which all state government transactions have to be conducted.'" Id. at 127. The court noted that the constitutional violation it had found was not the failure to provide a test in English, but rather "the disparate treatment given to Plaintiffs based on an impermissible classification — Plaintiffs' status as continental Americans." Id. The district court then cited a host of case law demonstrating why such a classification was illegitimate and thus "clearly violate[d] the Equal Protection Clause." Id. at 127-31. Appellants' qualified immunity claim was thus denied. To the extent that the
Id. at 131.
The court then turned to the issues of compensatory and punitive damages. It found that DiMarco should receive $39,404.43 in compensatory damages for lost income, and $50,000 in compensatory damages for mental and emotional suffering. Id. at 132. It also awarded DiMarco $50,000 in punitive damages based on the "callous indifference to federally protected rights" of appellants in their "willful mistreatment of persons based on their heritage." Id. The district court also awarded DiMarco reasonable attorneys' fees, a decision not appealed here. Id. at 133-35.
D. Motion to Alter or Amend [Motion for Reconsideration]
Appellants then moved for reconsideration under Federal Rules of Civil Procedure 52(b) and 59(e). Appellants seized on the district court's reliance on the procedural history of the litigation, claiming that the court's interpretation of that history was incorrect because the only previous holding was that "the Board had discriminated against plaintiff."
The district court was unpersuaded and found that "[d]efendants are merely repeating old arguments previously considered and rejected, and have failed to demonstrate a manifest error of law or fact." Zappa v. Rivera Cruz, No. 88-0692(JP), slip op. at 6 (D.P.R. Dec. 3, 1999) [hereinafter Reconsideration Order]. The court reasserted that "the question of whether Defendants violated Plaintiff's constitutional right to equal protection of the law was resolved nearly a decade ago." Id. at 8. Moreover, "even if the existence of the settlement agreement were insufficient to demonstrate that Defendants had waived their right to present a qualified immunity argument on the personal involvement of each Defendant, the Court finds that Defendants waived their right to present this argument by failing to raise it in their pre-trial brief, at trial, or in the post-trial brief presented to the Court." Id. at 9. The district court also refused to reconsider its award of compensatory and punitive damages.
This appeal, from both the original decision and the Reconsideration Order, followed.
I. Section § 1983 Liability and Qualified Immunity
Our analysis of this appeal is complicated by the complex procedural history of the litigation and the fact that the litigants have failed to address that procedural history in a doctrinally orthodox manner. Although appellants classify most of their arguments as support for "qualified immunity," a careful reading suggests that their arguments are better categorized as challenges to liability under § 1983. In particular, appellants focus on the district
The District Court's Discussion of the Procedural History and Waiver
Although appellants have not presented or categorized it as such, their most persuasive argument against liability under § 1983 is that the district court never held a hearing on liability, nor did it ever make an explicit finding that appellants were liable. Instead, during the damages phase of the litigation, the district court concluded that "it was established long before the bench trial in this case that Defendants ... violated DiMarco's constitutional right to equal protection of the law." Zappa, 30 F.Supp.2d at 131. In the district court's order on reconsideration, the court repeated this finding, referring to "a settlement entered into during a Status Conference" on March 19, 1990. Reconsideration Order at 8. Appellants challenge this conclusion; they argue that the lack of evidentiary support for this determination by the district court requires us to remand for a trial on liability. In short, they argue that because the district court's finding that it had previously determined liability was erroneous, liability does not exist.
It is true that nothing in the record indicates a conclusive determination of liability under § 1983. First, the order arising from the 1990 Status Conference only provided that "[t]he parties have agreed that the examination will be given in English, and that the only remaining issue is whether the plaintiffs passed this exam."
However, appellants' only objection to the April 19 Order was to claim that DiMarco had not satisfied certain prerequisites to the license or exhausted her administrative remedies. When the court rejected these objections and reiterated its holding, appellants made no effort to emphasize, or even to suggest, that a constitutional violation had not occurred. They did not complain that they misunderstood the state of the litigation. They did not indicate that the wrong defendants were being sued. And although DiMarco responded to the district court's proposed disposition by saying that she still sought damages, the defendants merely agreed that all issues other than whether DiMarco had passed the exam had been settled. At a May 11, 1993 status conference, defendants took substantially the same position.
Events between the 1993 status conference and the 1998 damages hearing further support waiver. First, when this Court remanded for consideration of DiMarco's damages claims, the defendants made no effort to make any of these arguments in objection to a damage hearing. Second, although the district court's February 20, 1996 Order stated that "the only remaining issue ... is plaintiff's claim for damages," and asked the parties to "inform the court of the legal contentions of the parties and their theories of the case," thus providing an opening for appellants to make such arguments, appellants' only effort
The defendants press the argument that the district court misunderstood what happened at the 1990 Status Conference and during the subsequent course of the litigation. We have acknowledged the special role played by the writing judge in elucidating the meaning and intendment of order[s] he authored. Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir.1987). However, the district court may have overstated the import of the order here. Cf. Harris, 20 F.3d at 512.
Whether the district court erred or not in its interpretation of the procedural history, it did not err in its determination that appellants had waived any objection to their liability under § 1983, given appellants' clear failure to raise the relevant issues at any time during the long history of this litigation. As was pointed out in oral argument, if liability was not established prior to the bench trial, appellants should have been strenuously objecting that the suit should be dismissed for lack of evidence of liability, not meekly arguing about damages or claiming qualified immunity. They did not do so, and they cannot raise the waived claim before this Court. McCoy v. Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir.1991). Furthermore, appellants' Motion for Reconsideration does not save them from waiver, even if there was a "manifest error of fact" that would otherwise warrant reconsideration.
Other Challenges to § 1983 Liability
To state a violation of § 1983, a plaintiff must show that "the official, acting under color of state law,
First, appellants claim that they cannot be liable under § 1983 because they were not "personally" responsible for the intentional discrimination (or at least a finding was never made as to their personal responsibility).
Appellants did not explain any further why there existed "no causal connection" between them and the alleged acts of discrimination. They made no allegation or showing of who might be personally responsible for the discriminatory actions in question; they did not even make an explicit claim that it was not they who discriminated. Furthermore, they failed to pursue or elaborate on this issue at trial.
This Court has repeatedly warned litigants that "arguments not made initially to the district court cannot be raised on appeal." St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1205 (1st Cir.1994) (quoting Kale v. Combined Ins. Co., 861 F.2d 746, 755 (1st Cir.1988)). Simply noting an argument in passing without explanation is insufficient to avoid waiver. McCoy, 950 F.2d at 22 (two sentences plus citation insufficient to avoid waiver). A party must "provide ... analysis of the statutory scheme," or "present ... legal authority directly supporting their thesis," or in the present case, at the very least give a reason why these defendants were not personally liable. Id. Appellants failed to present, much less develop this argument, be it pre-trial, during trial, or in their post-trial brief. They did not meet their "duty to spell out ... arguments squarely and distinctly." Id. "The [litigant] has an affirmative responsibility to put his best foot forward in an effort to present some legal theory that will support his [defense]." Id. at 23. We will generally not rescue a litigant from a failure to do so. See also Irving, 162 F.3d at 159 (calling for "developed argumentation").
Appellants' slightly longer discussion of the issue in their Motion for Reconsideration does not excuse their failure to raise the issue earlier.
Aybar v. Crispín-Reyes, 118 F.3d 10, 16 (1st Cir.1997) (quoting Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996)). To the extent that appellants' reconsideration motion sought to raise an argument waived at the trial stage, it must necessarily fail.
Appellants' waiver will not be excused based on the limited exceptions to the "raise-or-waive" rule. No "egregious circumstances" or "miscarriages of justice" exist here; given the long-running nature of this litigation and defendants' frequent
We also find no plain error here that would excuse waiver. "It is normally not error at all, let alone plain error, for a court to ignore a possible claim or defense that a party fails to proffer or pursue." Town of Norwood v. New England Power Co., 202 F.3d 408, 417 (1st Cir.2000). Given that appellants had been involved in the litigation for over a decade, that the complaint had from the beginning asserted liability over the appellants in their individual capacities, and that the appellants had never engaged in extensive argumentation that it was not they who violated the constitutional rights of plaintiff, the district court cannot be faulted for failing to consider such an argument. In fact, if such an argument had any merit, it would be very surprising to find that the appellants had not raised it early and often.
Given that appellants waived any argument as to their personal involvement with the actions in question, the issue of supervisory liability is superfluous. We therefore do not address whether DiMarco proved this theory of liability under § 1983 or whether appellants waived any challenge to such a theory.
Violation of a Constitutional Right
Appellants' third approach to avoid liability under § 1983, as we understand it, is that there was insufficient evidence to show that a constitutional right of DiMarco's had been violated. They claim that at no point prior to the district court's decision was there a conclusive finding that DiMarco's test had been graded in an intentionally discriminatory manner. Thus the district court's holding that such discriminatory grading had violated DiMarco's clearly established right to equal protection was in error. As we said earlier, the procedural history of this action shows the argument has been waived.
Again, we ask if the waiver should be excused and again conclude it should not be. There was ample evidence that defendants intentionally discriminated. They deliberately made the English language examination more difficult than the Spanish language examination. They also then falsely graded the English examination to give failing scores to those who had in fact passed the examination.
Even when an official is personally liable under § 1983, he may be shielded from paying damages when the doctrine of qualified immunity applies. In other words, "[q]ualified immunity shields government officials performing discretionary functions from civil liability for money damages when their conduct does not violate `clearly established' statutory authority or constitutional rights of which a reasonable person would have known." Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 65 (1st Cir.1997) (quoting Nereida-González v. Tirado-Delgado, 990 F.2d 701, 704 (1st Cir.1993)). Qualified immunity is an affirmative defense, and thus the burden of proof is on defendants-appellants. Harlow, 457 U.S. at 815, 818, 102 S.Ct. 2727; Gómez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). In contrast with their other arguments, defendants did not waive the qualified immunity argument.
The district court, which was the finder of fact here, found that "[t]he evidence has demonstrated beyond peradventure that Defendants treated Plaintiffs differently because the latter were continental Americans—Defendants provided them with a different exam than those given to native Puerto Rican applicants and then graded their exam unfairly. They did so to protect their `rice and beans,' or, more precisely, to assure that jobs in Puerto Rico are held by native Puerto Ricans." Zappa, 30 F.Supp.2d at 128. The district court thus found that defendants had violated DiMarco's equal protection right by failing "to evaluate both versions of the exam equally, without discriminating against continental Americans." Id.
Despite this clear holding by the district court, appellants spent both their brief and their Motion for Reconsideration explaining why there is no "clearly established right" to an English-language test. But they miss the point. The district court found that appellants intentionally discriminated in at least two ways. Having chosen to give an English language examination, they discriminated by making it more difficult. They then discriminated by falsely grading the exam, giving failing grades which were not warranted. To be granted qualified immunity, appellants must show that it is not a clearly established right for a non-Puerto Rican citizen to be free from arbitrary discrimination based on the fact that he or she is not ethnically Puerto Rican. Appellants have not attempted to do so at either the trial or the appellate level. Any such argument is thus doubly waived. See, e.g., Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd., 189 F.3d 1, 17 n. 4 (1st Cir.1999). Any supplementary review would be for plain error only, and, as we summarize below, the district court analysis was essentially correct. See Zappa, 30 F.Supp.2d at 128-31.
First, it is clearly established that the equal protection guarantee of either the Fifth or Fourteenth Amendment applies to Puerto Rico. Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 331 n. 1, 106 S.Ct. 2968, 92 L.Ed.2d 266 (1986) (citing Examining Bd. v. Flores de Otero, 426 U.S. 572, 599-601, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976)); Zappa, 30 F.Supp.2d. at 128. Second, intentional classifications based on national origin, ancestry, and race must withstand the strictest constitutional scrutiny. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213-18, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); Hernández v. Texas, 347 U.S. 475, 479, 74 S.Ct. 667, 98 L.Ed. 866 (1954); United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). It is true, as the district court pointed out, that "the Equal Protection Clause has seldom been invoked to protect `Americans' from national origin discrimination," simply because "there are few places in the United States where north Americans will be classified as such to their own detriment." Zappa, 30 F.Supp.2d at 129. However, much as Puerto Ricans may not be discriminated against within the United States based on either their national origin or ancestry, see, e.g., López v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987), so too does the guarantee of equal protection include
Appellants' only challenge to the compensatory damages award is to the $50,000 awarded as compensation for DiMarco's mental and emotional suffering. According to appellants, this Court will not permit such awards without more evidence than the plaintiff's own affidavit as to her suffering.
Appellants misread Pérez, a decision issued in the context of a district court's discretionary refusal to award more than $1 of damages. In Pérez, we said:
Id. at 25 (emphasis added). We then noted that the plaintiffs in Pérez had failed to provide "evidence of actual injury" other than their own statements, and that lacking evidence of "loss of employment," "delay in meeting academic requirements," "significant harm to plaintiffs' reputation," or "medically cognizable psychological distress," "courts are not inclined to award compensatory damages for general mental distress." Id. (citing Stolberg v. Members of Bd. of Trs. for State Coll. of Conn., 474 F.2d 485 (2d Cir.1973)).
Unlike the court in Pérez, the district court here found evidence to support compensatory damages for mental suffering. The district court has broad discretion to determine damages. McKinnon v. Kwong Wah Rest., 83 F.3d 498, 506 (1st Cir.1996). In general, this Court will not override a damage determination unless the award is "unsupported by the evidence, grossly excessive, or shocking to the conscience." Id.; see also Kercadó-Meléndez v. Aponte-Roque, 829 F.2d 255, 266-67 (1st Cir.1987) (upholding $15,000 award). As appellants have adduced no evidence to suggest that any of these tests are met, we uphold the district court's award of compensatory damages for mental suffering.
Appellants' final claim on appeal is that the punitive damage award was unsupported by either the district court's findings of fact or the evidence. Punitive damages may be awarded under § 1983 "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). Such indifference "pertain[s] to the [defendant's] knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad v. American Dental Ass'n, 527 U.S. 526, 535, 119 S.Ct. 2118,
Because appellants never challenged their liability under § 1983 at the trial level, and their arguments as to qualified immunity from that liability are misplaced, we affirm the district court's holdings as to those issues. We also find that DiMarco adduced sufficient evidence to support the entire compensatory damage award, and that the court did not abuse its discretion in awarding punitive damages of $50,000.