809 F.2d 125 (1st Cir. 1987), 86-1428, Cheveras Pacheco v. Rivera Gonzalez

Docket Nº:86-1428.
Citation:809 F.2d 125
Party Name:Francisco CHEVERAS PACHECO, et al., Plaintiffs, Appellees, v. Juan M. RIVERA GONZALEZ, et al., Defendants, Appellants.
Case Date:January 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 125

809 F.2d 125 (1st Cir. 1987)

Francisco CHEVERAS PACHECO, et al., Plaintiffs, Appellees,


Juan M. RIVERA GONZALEZ, et al., Defendants, Appellants.

No. 86-1428.

United States Court of Appeals, First Circuit

January 13, 1987

Submitted Oct. 10, 1986.

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Pedro Juan Perez Nieves, Hector Rivera-Cruz, Secretary of Justice, Com. of Puerto Rico, Rafael Ortiz-Carrion, Sol. Gen., Com. of Puerto Rico, San Juan, P.R., and Saldana, Rey, Moran & Alvarado, (Santurce, P.R., on brief, for defendants, appellants.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiff, contending he had been discharged from government employment, brought the present section 1983 action seeking damages and reinstatement. Essentially, he claims 1) that the discharge was done without prior notice or hearing in violation of his right to procedural due process and 2) that he was discharged because of his affiliation with the political party defeated in Puerto Rico's 1984 elections in violation of his first amendment rights. Defendants moved for summary judgment on the damages claim on the theory that they had not violated clearly established law and that hence they were entitled to qualified immunity. Defendants' motion was denied without opinion, and they have now appealed. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (allowing immediate appeal from an order denying qualified immunity claims). Defendants claim they did not discharge plaintiff at all. Rather, they say, plaintiff was a "transitory" employee, that is, one appointed for a fixed term, and they simply refused to give plaintiff a new appointment once his fixed term had expired.

1. Procedural due process. With respect to plaintiff's procedural due process claim, defendants' position is that it was not clearly established law at the time of plaintiff's job termination that an employee with a contractually fixed term of employment had a property interest in employment beyond the specified term and hence had a constitutional right to notice or a hearing. In general, defendants are correct. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (professor with one year term of appointment has no property interest in renewal of

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his appointment and no right to notice or hearing concerning the reasons for nonrenewal). Property interests may be created, however, not only by explicit contractual provisions but also by an implied contract or officially sanctioned rules of the work place. Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972).

Plaintiff alleges in his complaint and affidavit that, although he was classified as a transitory government employee, he always understood his position to be permanent in nature. He had been employed in a transitory capacity for nearly six years before his discharge without notice or hearing. What plaintiff does not allege, however, is a basis for his "understanding" that his position was, in effect, permanent and thus not governed by Puerto Rico law providing that a transitory employee "may be removed from service at anytime during the term of his appointment." 3 L.P.R.A. Sec. 1336(9) (Supp.1985). See Perry v. Sindermann, 408 U.S. at 602 n. 7, 92 S.Ct. at 2700 n. 7, ("If it is the law of Texas that a teacher in the respondent's position has no contractual or other claim to...

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