FRANCISCO BESOSA, District Judge
Defendant's Rule 59(e) motion to alter or amend the Opinion and Order of September 12, 2007 (Docket No. 86) is hereby DENIED.
Pursuant to Rule 59(e), a party may move the Court "to amend its judgment based on newly discovered material evidence or because the Court committed a manifest error of law or fact."Colon v. Fraticelli, 181 F.Supp.2d 48, 50 (D.P.R. 2002) (citing Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997)). Rule 59(e), however, is "aimed at reconsideration, [and] not initial consideration," and thus is not a proper mechanism to advance arguments that should have been presented before judgment was entered, but were not. See Jorge Rivera Surillo Co., Inc. v. Falconer Glass Indus., Inc. 37 F.3d 25, 29 (1st Cir. 1994) (citing F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)); see also Aybar, 188 F.3d at 16.
Defendants raise three arguments in their motion: (1) that Law 100 does not provide for the personal liability of officials of the Commonwealth of Puerto Rico; (2) that under section 1983, the plaintiff failed to show that there is a causal connection between defendants' conduct, as manifested in an adverse employment decision, and the plaintiff's political affiliation; and (3) that plaintiff's section 1983 claim for politically motivated discrimination is moot. With one additional wrinkle, defendants' first and second arguments rehash arguments raised in their motion for summary judgment and their partial motion for judgment on the pleadings. Because the defendants did not offer new evidence, point to an intervening change of law, or highlight a manifest error of law or fact in the Court's September 12, 2007 opinion, these arguments are rejected.
As part of their argument that plaintiff failed to make the required showing under section 1983, defendants argue (for the first time) that plaintiff relied upon inadmissible hearsay evidence. (Mot. For Recon. 13-14.) This argument is unavailing for several reasons. First, the only statement specifically referred to by the defendants as hearsay, Caballero's "aja" response to a question posed by the plaintiff, was not the sole basis for the Court stating that the plaintiff proffered evidence that Santiago knew of her political affiliation. Rather, as the Court noted in its September 12, 2007 Order, plaintiff proffered evidence that her affiliation was well known within the AOC and to those close to Santiago. (Sept. 12, 2007 Order 12.) Thus, even if the alleged hearsay statement were excluded, there would still be other evidence proffered by the plaintiff indicating that Santiago was aware of the plaintiff's political affiliation, leaving a credibility question to be answered by the jury. Second, the challenged "aja" statement may be construed as the admission of an agent of the defendants, during the existence of the agency relationship and concerning a matter within the scope of the agency. Fed.R.Evid. 801(d)(2)(D). Third, the hearsay argument could have been raised prior to the Rule 59(e) motion, and therefore it is inappropriate to raise it now.
The defendants' third argument, that the remaining federal claim is moot, has been raised for the first time. Normally, a Rule 59(e) motion may not be used to raise a novel legal argument. See, e.g., Surillo, 37 F.3d at 29. Nonetheless, in arguing that the remaining federal claim is moot, defendants have raised an issue that the Court must address because it implicates the Court's authority to hear the pending case. Cf., Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 23 (1997) ("It is the duty of counsel to bring to the federal tribunal's attention, `without delay,' facts that may raise a question of mootness."); St. Paul Fire Marine Ins. Co. V. Barry, 438 U.S. 531, 537 (1978) (addressing mootness although it had not been raised by the parties because it implicates the Court's jurisdiction).
Defendants note that the plaintiff filed her claim seeking redress after defendants denied her a promotion to the position of Executive Officer for Administration following a competitive process. (Mot. For Recon. at 10.) Defendants then indicate that in 2005 plaintiff was reclassified as an Executive Officer for Administration following the issuance of a resolution from a state commission. (Id. at 11.) Defendants also state that plaintiff was awarded back pay for the position from July 15, 2001 until November 30, 2005. (Id.) Plaintiff then continued in that position until her retirement. (Id.) To paraphrase, defendants argue that plaintiff's claim for political discrimination under section 1983 is moot because plaintiff has already been awarded the position that she had been denied and because she received compensation in the form of back pay beginning prior to the date of the alleged rights violation.
Had plaintiff only requested injunctive relief and compensatory damages limited to back pay, then there may have been a firm foundation for defendants' mootness argument. But, plaintiff also requested punitive damages and compensatory damages that go beyond back pay to include compensation for reputational harm, as well as for mental and emotional suffering. (Compl. at 3, 8, 10.) On the record before the Court, these forms of relief were not already provided to the plaintiff. Thus, it is still possible for the plaintiff to receive a remedy from this Court for the alleged violation of her constitutionally protected first and fourteenth amendment rights. Accordingly, her claim of politically motivated discrimination is not moot. See Loss v. Blankenship, 673 F.2d 942, 951 n. 11 (7th Cir. 1982) ("Because we cannot say that the plaintiffs will be precluded from further relief, we reject Blankenship's assertion that the entire complaint is moot in light of the relief granted by the National Labor Relations Board."); Dickerson v. U.S. Steel Corp., 64 F.R.D. 351, 360 (E.D.Pa. 1974) (consent decree entered into by defendants in settlement of a suit brought by the government alleging racially discriminatory practices did not moot a private action also alleging racially discriminatory practices where the consent decree did not "preclude additional-or even inconsistent-relief in favor of private parties in other litigation.").
IT IS SO ORDERED.