de Abadia v. Izquierdo Mora

Decision Date27 June 1986
Docket NumberNos. 85-1505,85-1520,s. 85-1505
Citation792 F.2d 1187
PartiesLuisa A. DE ABADIA, et al., Plaintiffs, Appellees, v. Hon. Luis IZQUIERDO MORA, et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Page 1187

792 F.2d 1187
Luisa A. DE ABADIA, et al., Plaintiffs, Appellees,
v.
Hon. Luis IZQUIERDO MORA, et al., Defendants, Appellants.
Nos. 85-1505, 85-1520.
United States Court of Appeals,
First Circuit.
Argued Sept. 13, 1985.
Decided May 27, 1986.
Rehearing and Rehearing En Banc Denied June 27, 1986.

Marcos A. Ramirez Lavandera with whom Marcos A. Ramirez and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendants, appellants.

Jose E. Fernandez-Sein with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, and ALDRICH and TORRUELLA, Circuit Judges.

Page 1188

BAILEY ALDRICH, Senior Circuit Judge.

This is our second installment in a saga of Puerto Rican politics following the gubernatorial election of November 1984. See Jimenez-Fuentes v. Torres Gaztambide, 779 F.2d 765 (1st Cir.1985) (since withdrawn and decision en banc now awaited). Plaintiff Luisa de Abadia, a member of the party (PNP) ousted in that election and former Executive Director of the Quality Control Program of the Department of Health, seeks monetary damages and injunctive relief under 42 U.S.C. Sec. 1983 against Luis A. Izquierdo Mora, the recently appointed Secretary of the Department of Health, Guillermo Irizarry, the Administrator of the Department, and Sonia I. Colon Robles, the Department's Personnel Director. She alleges that defendants violated her civil rights when they demoted her to a "career" position as a nutritionist within the Department. Specifically, she claims her demotion was due to her political affiliation, in violation of the strictures of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Defendants moved for summary judgment, arguing that the qualified immunity to which, as public officials, they were entitled, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), precluded recovery in damages against them, whatever the outcome of the injunctive claim. The district court denied the motion, and defendants appeal.

Strictly, defendants filed two motions. The court disposed first of their motion to delay discovery until the motion for summary judgment was acted upon. In denying this, by written order, the court said that although it might agree that officials might be entitled to a qualified immunity in claims for damages in a proper case,

"this action is ... not an action seeking damages, but is also an action for injunctive relief against which the defendants may not be entitled to a claim of qualified immunity. Generally, the immunity doctrine is only applicable to actions for damages and cannot be employed in suits seeking declaratory or injunctive relief. Mitchum v. Foster, 407 U.S. 225 [92 S.Ct. 2151, 32 L.Ed.2d 705]. Thus, the issue of immunity is not as clear cut as defendants argue in their motion to stay."

Our thought that the court was here confusing the making of an early ruling as to immunity with the right to an immediate appeal, where both damages and an injunction were involved, is confirmed by its later, oral, ruling denying the motion for summary judgment. When the parties discussed the merits of that motion, and the court stated it would deny it, it added, "It is not appealable, anyway." The following then occurred.

Mr. Ramirez: It is appealable if it denies qualified immunity, that's one of the cases we cited on the motion.

The Court: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things.

Mr. Ramirez: It includes qualified immunity.

The Court: You raised it, but in an injunction I am not so sure that qualified immunity applies or not, as I said in my order denying your request to stay.

Mr. Ramirez: Okay so Your Honor is denying then the--

The Court: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment.

This would seem to raise two points: whether it was correct to deny the motion for summary judgment, and whether an incorrect denial would be appealable. 1

We consider first whether denial of summary judgment on a claim of qualified immunity which the Court held in Mitchell v. Forsyth, --- U.S. ----, 105 S.Ct. 2806, 86

Page 1189

L.Ed.2d 411 (1985), warranted an immediate appeal as a "final decision" in an action simply for damages, would not permit an immediate appeal if there were also a claim for injunctive relief. This question was left open in Mitchell, ante, at 2812, footnote 5. Before Mitchell, two circuits had divided on this question. The Fourth, Bever v. Gilbertson, 724 F.2d 1083 (4th Cir.1984) (2-1), denied appealability; Tubbesing v. Arnold, 742 F.2d 401 (8th Cir.1984), held contra. We have found no other cases since Mitchell, and it is a matter of first impression in this circuit. In Krohn v. United States, 742 F.2d 24 (1st Cir.1984), we held that the denial of qualified immunity is immediately appealable, but, as in Mitchell, ante, we had before us only a claim for damages. It seems to us, however, that the official's concerns are the same when there is also a claim for an injunction and we conclude that the rule should extend to such cases.

As the Court said in Mitchell, qualified immunity is more than an immunity from money damages; it is "an immunity from suit ... [which] is effectively lost if a case is erroneously permitted to go to trial." Id. at 2816 (emphasis in original). This is so, the Court said, because,

the "consequences" with which we were concerned in Harlow are not limited to liability for money damages; they also include "the general costs of subjecting officials to the risks of trial--distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service." Id. at 2815 (quoting Harlow, ante, 457 U.S. at 816, 102 S.Ct. at 2737).

Plaintiff argues that because defendants must proceed to trial in any event on the injunctive claim, there is little purpose in allowing them to avoid trial on damages. Plaintiff would quote Bever, ante, 724 F.2d at 1086-87, to the effect that,

[defendants remain] the principal defenders of the state's position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at trial. Whether or not they are immune from damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damages claims cannot avoid the diversion of their attention from official duties which the litigation will occasion.

....

In these circumstances, the question whether a denial of the immunity claims is appealable would appear to have little effect upon the willingness of responsible persons to serve in public office. 2

With due respect to the Fourth Circuit, we do not follow its reasoning. Its approach assumes that, for a public official, the threat of suit in his individual capacity is no worse than the threat of suit as representative of the state, and that the burdens of defending are no more onerous for the former than the latter. Although we recognize a public official's obligation to defend a suit brought against him in his public capacity, the emotional, and perhaps physical, responsibility is not as great. "[T]he fear of being sued and held personally liable for damages is a far cry from a suit for reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties." Bever, ante, 724 F.2d at 1091-92 n. 4 (Hall, J., dissenting). The threat may well include punitive, as well as actual damages. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473-74, 64 L.Ed.2d 15 (1980). Even if the actual time spent on the case away from his ordinary responsibilities were the same whether the damages claim was in or out, the official's energy may be

Page 1190

diverted from pressing public issues merely by the personal apprehension involved. At the least, the official sued for damages may have to retain his own counsel at his own expense. Tubbesing, ante, 742 F.2d at 404 n. 3. In this litigious age all of these concerns are legitimate, and might easily deter individuals from taking public office.

Finally, the Fourth Circuit's approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune.

In sum, we agree with the dissent in Bever, and with Tubbesing in all respects. We hold that an interlocutory appeal lies from the district court's denial of summary judgment on a claim of qualified immunity from damages liability, even though a petition for injunctive relief is also pending.

Perhaps because of its erroneous views on the availability of an advance ruling on qualified immunity, the district court did not discuss whether defendants had made a sufficient showing of immunity. Instead, it denied summary judgment on the basis of "clear issues of fact," but made little showing as to their extent beyond reference to the "controversy whether Mrs. Abadia was or was not a confidential employee, what her duties were ... [t]hat's why I cannot decide by summary judgment." Obviously if there was a determining question of fact regarding defendant's qualified immunity defense, denial of the motion was correct. See Fernandez v. Leonard, 784 F.2d 1209, 1214, note 2 (1st Cir.1986).

There is a serious shortage of record. In their proposed pretrial order, the parties listed four disputed matters: 1) whether plaintiff's position was "confidential"; 2) whether she was terminated for political reasons; 3) whether her position was "policy making"; and 4) whether "political loyalty is an appropriate requirement for the...

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