Agromayor v. Colberg, 83-1825

• Decision Date: 05 July 1984
• Docket Number: No. 83-1825,83-1825
• Citation: 738 F.2d 55
• Parties: 35 Fair Empl.Prac.Cas. 239, 34 Empl. Prac. Dec. P 34,508 Manuel AGROMAYOR, Plaintiff, Appellee, v. Severo COLBERG, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 55

738 F.2d 55

35 Fair Empl.Prac.Cas. 239,

34 Empl. Prac. Dec. P 34,508

Manuel AGROMAYOR, Plaintiff, Appellee, v. Severo COLBERG, Defendant, Appellant.

No. 83-1825.

United States Court of Appeals First Circuit.

Argued April 6, 1984.

Decided July 5, 1984.

Marcos A. Ramirez Lavandero, Hato Rey, P.R., with whom Marcos A. Ramirez, and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for appellant.

Maria H. Sandoval, Santurce, P.R., with whom Harvey B. Nachman, and Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., were on brief, for appellee.

Before BOWNES, ALDRICH and BREYER, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

This action for compensatory and punitive damages involves three questions: appealability; the meaning and effect of a legislative rule relating to hiring and discharge of legislative employees, and legislative immunity. The rule caused plaintiff to lose an opportunity for employment as a legislative press officer. He brought suit under 42 U.S.C. Sec. 1983, and defendant moved to dismiss on the basis of absolute legislative immunity. ¹ The motion was denied 573 F.Supp. 939, and defendant appeals. We reverse.

In March, 1983, plaintiff, a journalist, a member of the New Progressive Party, applied to Representative Granados-Navedo, the minority leader of the Puerto Rico House of Representatives and also a member of the New Progressive Party, for employment as a House "press officer." Granados was willing, but to effect the employment he was required to submit plaintiff's name to defendant Colberg, the President of the House. Rule VII of the House provided as follows.

RULE VII

EMPLOYEES OF THE HOUSE OF REPRESENTATIVES

1. The permanent employees of the House will be designated by the President and will perform their functions during the term of each Legislative Assembly. The President may, at any moment, deem terminated the term for which any employee was employed when in his (or her) judgment such termination is necessary for the convenience of the service, and he (or she) will name a corresponding successor.

2. Temporary employees in the service of the House will be named in the same manner as permanent employees.

3. The President may discipline the employees and will be empowered to suspend them from their jobs by reason of their failure to comply with their duties. In such a case, the suspended employee will receive no salary or remuneration whatsoever and the President may name a substitute employee, and will inform the House on its following session.

Defendant was a member of the Popular, the other leading party. Before he had acted on Granados' request, plaintiff published an article in a San Juan newspaper, attacking the Popular Party, and defendant in particular. Defendant published a response in another newspaper, and wrote Granados that because of the defamatory nature of plaintiff's attack on his person, and even more on the respectability of the House, he did not consider him "morally fit" to be a press officer, and would not effect his employment.

In his complaint plaintiff alleged that defendant's refusal to designate him for employment, (1) interfered with his freedom of association; (2) interfered with his freedom of speech and of the press; (3) discriminated against him because of his national origin, and (4) deprived him of a property interest in a job without due process. The parties stipulated to four exhibits: plaintiff's newspaper article; defendant's newspaper article; defendant's letter to Granados stating his reasons for not executing plaintiff's contract, and Rule VII. The court telescoped the complaint into one sentence, that plaintiff was refused "because of what he had written in a [newspaper] article and because he was not a Puerto Rican." After a discussion, post, it overruled defendant's immunity defense.

1. Appealability

Before considering the merits, we address the challenge to our appellate jurisdiction. Ordinarily, of course, the denial of a motion to dismiss is not an appealable "final decision" under 28 U.S.C. Sec. 1291. See Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966); Securities & Exchange Comm'n v. Sloan, 535 F.2d 679, 681 (2d Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357. It is now well settled, however, that where an order serves permanently to deny important collateral rights of a litigant, the order may be immediately appealable. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir.1979). The Court has applied this doctrine to pre-trial denials of absolute immunity, reasoning that, if the immunity exists, it is intended not only to relieve defendants from liability, but also "from the burden of defending themselves." See Helstoski v. Meanor, 442 U.S. 500, 506-08, 99 S.Ct. 2445, 2448 -49, 61 L.Ed.2d 30 (1979); see also Flanagan v. United States, --- U.S. ----, ----, 104 S.Ct. 1051, 1055-56, 79 L.Ed.2d 288 (1984); Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982). This intent would be unprotected if a defendant must wait until after trial to appeal. Accordingly, we have jurisdiction to determine now whether defendant is entitled to immunity, at least if he presents a plausible claim thereto. We hold that he has done this.

2. The claims.

Turning to the merits, before considering what, under section 1983, is at issue, we note what is not. We agree with the district court's short summation, ante, omitting mention of count (1), freedom of association, and (4), deprivation of property without due process. As to count (1), there is no allegation that plaintiff was refused employment because of his political party, but only that because of defendant's refusal, plaintiff lost a party opportunity. There can be no affirmative right to employment on the basis of party membership. Plaintiff would confuse incidental consequences of defendant's action with actuating purpose. If this reasoning were sound, every time a man, say, is given a job, rather than a woman, no amount of evidence of superior qualifications would suffice because the bottom line would be that the woman was rejected. Count (1) does not state a 1983 cause of action.

Nor, as to count (4), can there be a property interest in a contract not yet received. Board of Regents v. Roth, 408 U.S. 564, 577-78, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Even a cursory look at the rule's broad compass refutes plaintiff's allegation that it merely makes the President a rubber stamp, so that plaintiff had an agreement with Granados that created a property interest. The legislators' functions can be delegated, and nothing in the rule indicates that anything less than a full delegation was intended, or that the hiring task is any different in the hands of the President. We will not go beyond the plain language to inject ourselves into the internal workings of the legislature.

As to the balance of the complaint, we must deal with the speech and national origin claims as they relate to legislative immunity. We note, with respect to count (3), that although the written exhibits give little if any support to the claim that plaintiff was refused a position because of his nationality of origin, let alone that it was a determinative factor, the complaint asserts, and for the purpose of the motion it accordingly must stand admitted, that defendant told Granados orally that he declined both because of the newspaper article, and because plaintiff was not a native Puerto Rican. At the same time we remark, in passing, that it would be only with great difficulty, in light of the written record, that we could imagine plaintiff able to meet his requirement of showing that, but for his Argentinian birth, defendant would have been willing to designate his employment. Cf. Mount Healthy City School District v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977).

3. The immunity.

The Supreme Court has long recognized that state legislators, when acting "in the sphere of legitimate legislative activity," enjoy a federal common law absolute immunity from suit under section 1983. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-32, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980); Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). This immunity is based on the need for an independent legislative branch, free from the coercion of restraint imposed by inquiry from other governmental authority, as well as from the time consuming problem of legislators having to defend their official acts in court. See Tenney, ante, 341 U.S. at 373-78, 71 S.Ct. at 786-89; cf. United States v. Doe, 455 F.2d 753, 758 (1st Cir.1972), vacated on other gr'ds sub nom. Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). Although, unlike the constitutional immunity for Congressmen the immunity is not based upon the separation of powers, principles of comity and federalism also enter in the balance. United States v. Gillock, 445 U.S. 360, 370-73, 100 S.Ct. 1185, 1192-93, 63 L.Ed.2d 454 (1980).

The scope of "legitimate legislative activity" subject to immunity, however, is ill-defined. ² The immunity has never applied to every activity undertaken by a legislator while in office, but only to those functions significantly related to legislating. In decisions regarding the Constitution's Speech and Debate Clause, the test has been stated as whether the challenged activities were "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel...