889 F.2d 314 (1st Cir. 1989), 87-2096, Rosario-Torres v. Hernandez-Colon

Docket Nº:87-2096, 87-2097.
Citation:889 F.2d 314
Party Name:Miguel A. ROSARIO-TORRES, et al., Plaintiffs, Appellees, v. Rafael HERNANDEZ-COLON, etc., et al., Defendants, Appellees. Appeal of Franklin MARTINEZ-MONGE, Defendant. Miguel A. ROSARIO-TORRES, et al., Plaintiffs, Appellants, v. Rafael HERNANDEZ-COLON, etc., et al., Defendants, Appellees.
Case Date:November 08, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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889 F.2d 314 (1st Cir. 1989)

Miguel A. ROSARIO-TORRES, et al., Plaintiffs, Appellees,


Rafael HERNANDEZ-COLON, etc., et al., Defendants, Appellees.

Appeal of Franklin MARTINEZ-MONGE, Defendant.

Miguel A. ROSARIO-TORRES, et al., Plaintiffs, Appellants,


Rafael HERNANDEZ-COLON, etc., et al., Defendants, Appellees.

Nos. 87-2096, 87-2097.

United States Court of Appeals, First Circuit

November 8, 1989

Heard Sept. 12, 1989.

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Rafael F. Castro Lang, San Juan, with whom Jose Ramon Perez Hernandez and Rafael Sanchez Hernandez were on brief, for plaintiffs, appellees.

Jose Angel Rey, with whom Zuleika Llovet, Saldana, Rey, Moran & Alvarado, Hato Rey, P.R., Hector Rivera-Cruz, Secretary of Justice, Bayamon, P.R., and Jorge Perez-Diaz, Sol. Gen., were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

More than two years ago, we remarked the "steady drumbeat of civil actions involving claimed politically motivated discharges arising out of the change in administration following Puerto Rico's 1984 gubernatorial election." Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987). Time has little diminished that diapason. See, e.g., Arbona-Custodio v. de Jesus-Gotay, 873 F.2d 409 (1st Cir.1989) (per curiam); Gonzalez-Vega v. Hernandez-Colon, 866 F.2d 519 (1st Cir.1989) (per curiam); Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40 (1st Cir.1988); Goyco de Maldonado v. Rivera, 849 F.2d 683 (1st Cir.1988); Juarbe-Angueira v. Arias, 831 F.2d 11 (1st Cir.1987), cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988). The appeals presently before us are borne aloft on the same winds of political change.

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There are nine plaintiffs, each of whom is a member of the New Progressive Party (NPP). Prior to May 1985, they were all employed at the Governor's mansion (La Fortaleza) in Puerto Rico, serving as drivers, messengers, typists, warehousemen, and the like. Although assigned to "career" positions, none of them had been hired in accordance with the recruitment protocol set forth in Puerto Rico's civil service laws. 1 After the Popular Democratic Party won the 1984 election, defendant Martinez-Monge became the new governor's aide in charge of administration. In that capacity, he was the decisionmaker regarding employment at La Fortaleza.

The axe was not long in falling. On May 20, 1985, defendant sent letters iterating that all nine plaintiffs had been recruited in disregard of the regulatory hiring scheme. Eight plaintiffs requested a pretermination hearing, which was held in June 1985. The hearing examiner concluded that the facts recited in the May 20 letters were accurate. All plaintiffs were dismissed shortly thereafter.

Plaintiffs filed suit in Puerto Rico's federal district court under 42 U.S.C. Sec. 1983 (1982), claiming that their dismissals were politically motivated (and thus, violative of the first amendment); and that they had been denied the procedural protections guaranteed to them by the Due Process Clause of the fourteenth amendment. 2 After a bench trial, the district court determined that plaintiffs were entitled to, and had been denied, procedural due process, Rosario Torres v. Hernandez Colon, 672 F.Supp. 639, 650-53 (D.P.R.1987); that the pretermination hearings were a "sham," id. at 648; and that the plaintiffs had been dismissed solely by reason of their political affiliations, id. at 653-55. The court awarded backpay, compensatory damages, punitive damages, attorneys' fees, and costs to all plaintiffs, but ordered only one worker reinstated. Id. at 655-56.

The lower court ruling produced two notices of appeal. A panel of this court divided on certain of the questions presented. Defendant's petition for rehearing en banc was subsequently granted and the panel opinions withdrawn. 875 F.2d 351 (1st Cir.1989). Supplementary briefing and oral argument before the full court followed.


We first address a procedural problem. It is a jurisdictional prerequisite that

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a notice of appeal "shall specify the party or parties taking the appeal." Fed.R.App.P. 3(c). If such a notice is not sufficiently particularized, it fails to confer appellate jurisdiction. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Gonzalez-Vega v. Hernandez-Colon, 866 F.2d at 519. In this instance, plaintiffs' notice of appeal was filed on October 21, 1987. It bore the caption:



The body of the notice, in its entirety, read as follows:


Notice is hereby given that plaintiffs through their undersigned attorneys, appeal to the United States Court of Appeals for the First Circuit from the final judgment entered in the case of caption on September 21, 1987.

There were a total of nine plaintiffs before the district court--yet no plaintiff was named specifically in the notice's text as an appellant, and only Miguel Rosario-Torres was named in the caption. Under these circumstances, the notice of appeal sufficed to bring Rosario-Torres' grievances before us. See Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.1989) (the presence of a defendant's name in the case caption, "coupled with the statement in the body of the notice of appeal that 'defendants hereby appeal,' ... satisfied as to him the specificity requirement"). But, the notice was wholly inadequate as to the remaining plaintiffs. See Oakland Scavenger, 108 S.Ct. at 2409; Gonzalez-Vega, 866 F.2d at 519-20; Santos-Martinez v. Soto-Santiago, 863 F.2d 174, 175-76 (1st Cir.1988).

We need not wax longiloquent on the topic. Cases previously decided leave no doubt that in this circuit inserting the words "et al." in the case caption cannot fulfill the mandate of Rule 3(c). See Oakland Scavenger, 108 S.Ct. at 2409; Santos-Martinez, 863 F.2d at 176. The use of the plural ("plaintiffs") in the notice of appeal is equally unavailing; in analogous circumstances, we have refused to entertain an appeal by unnamed plaintiffs based on a notice containing a statement that "all plaintiffs appeal." See id.; see also Gonzalez-Vega, 866 F.2d at 520 (use of plural "plaintiffs" in body of appeal notice, together with inclusion of words "et al." in caption, insufficient to meet specificity requirement). Lastly, we--and the large majority of other courts of appeals--have held unequivocally that the specificity rules apply with full force to appeals, like this one, taken before the Oakland Scavenger opinion was announced. See, e.g., Santos-Martinez, 863 F.2d at 177; United States v. Spurgeon, 861 F.2d 181, 183 & n. 3 (8th Cir.1988) (distinguishing McMichael v. United States, 856 F.2d 1024 (8th Cir.1988), which declined to apply Oakland Scavenger retroactively); Cotton v. U.S. Pipe & Foundry Co., 856 F.2d 158, 162 (11th Cir.1988); Meehan v. County of Los Angeles, 856 F.2d 102, 105 (9th Cir.1988); Appeal of District of Columbia Nurses' Ass'n, 854 F.2d 1448, 1449-50 (D.C.Cir.1988) (per curiam), cert. denied, --- U.S. ----, 109 S.Ct. 3189, 105 L.Ed.2d 697 (1989); cf. Board of Governors of State Colleges & Universities v. Akins, --- U.S. ----, 109 S.Ct. 299, 102 L.Ed.2d 319 (1988) (mem.) (vacating judgment and remanding for reconsideration case in which pre-Oakland Scavenger notice of appeal that named only one party was held sufficient notice for all parties), on remand, 867 F.2d 972, 974 (7th Cir.1988) (applying Oakland Scavenger retroactively).

Without further ado, we conclude that we lack power to entertain the appeal of any plaintiff save Rosario-Torres. Although such a result is admittedly harsh, it is compelled by Oakland Scavenger. We have no jurisdiction over purported appeals sponsored by would-be appellants not specified in a timeous notice of appeal.


We are left, then, with two appeals: one on behalf of defendant (who filed a proper and timely notice) and one to Rosario-Torres' behoof. These appeals, in the aggregate, raised five issues, viz.: (1) the propriety of the ruling that plaintiffs' appointments,

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though illegal, "created an expectation of continued employment," Rosario Torres, 672 F.Supp. at 652, entitling them to "procedural due process," id. at 653, which they did not receive; (2) the viability of the finding that the plaintiffs "were dismissed solely because of their political affiliation with the [NPP]," id.; (3) whether defendant was qualifiedly immune from liability for money damages, id. at 648; (4) whether the compensatory damages awarded to Rosario-Torres were too meager; and (5) Rosario-Torres' complaint that he did not win reinstatement to his government job. There is precious little flesh on the bones of the middle three offerings. The panel was unanimous in upholding the district court on these points, and we granted en banc review principally to consider the first and fifth issues. We think it is enough, therefore, simply to note our acquiescence as to items 2-4, making only a few comments in regard thereto.

These plaintiffs, with one possible exception, 3 occupied low-level, nonpolicymaking positions: "[t]hey are modern-day equivalents of the 'hewers of wood and drawers of water.' " Vazquez Rios, 819 F.2d at 322 (quoting Joshua 9:21). Thus, politics was not a permissible employment criterion. See generally Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The record is nonetheless replete with evidence that plaintiffs' constitutionally protected conduct was a substantial motivating factor in the decision to cashier them. The district court concluded, supportably, that the firings would not...

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