Feliciano-Angulo v. Rivera-Cruz

Decision Date07 March 1988
Docket NumberRIVERA-CRUZ,P,FELICIANO-ANGUL,No. 87-1846,87-1846
Citation858 F.2d 40
PartiesRichardlaintiff, Appellee, v. Hon. Hector, etc., Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Carlos Del Valle, Hato Rey, P.R., with whom Rafael Ortiz Carrion, Sol. Gen., Marcos A. Ramirez Irizarry, Jose A. Sanchez Alvarez and Ramirez & Ramirez, Hato Rey, P.R., were on brief for defendant, appellant.

Jesus Hernandez Sanchez, San Juan, P.R., with whom Antonio Hernandez Sanchez, Rio Piedras, P.R., was on brief for plaintiff, appellee.

Before CAMPBELL, Chief Judge, WISDOM, * Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge.

This interlocutory appeal is from an action commenced in January 1985 by the plaintiff, Richard Feliciano Angulo, in the United States District Court for the District of Puerto Rico pursuant to 42 U.S.C. Sec. 1983 (1982), against defendants, Hector Rivera Cruz, the Secretary of Justice for the Commonwealth of Puerto Rico, and Luis A. Feliciano, the Commonwealth's interim Secretary of Justice. In his original complaint for damages and equitable relief, Feliciano had alleged that defendants had violated the First and Fourteenth Amendments when, because of his political affiliation, they demoted him from his "trust" position as Puerto Rico's Assistant Secretary for Administration of the Department of Justice, to a career position as Executive Functionary V. See 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). See generally Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). After the filing of the original complaint, defendant Rivera Cruz dismissed Feliciano from the career position of Executive Functionary V. This caused Feliciano to amend his complaint to allege that his later dismissal from the career position also violated his constitutional rights in three respects: First, his dismissal was accomplished without procedural due process. Second, his dismissal had violated the First Amendment because it was due to his political affiliation. And third, his dismissal further violated the First Amendment because it was in retaliation for his bringing of the original complaint.

Defendants moved for summary judgment, contending inter alia that political affiliation had been an appropriate consideration when filling Feliciano's former trust position of Assistant Secretary of Administration, and also contending that they were qualifiedly immune from damages on all claims. The district court granted the summary judgment motion in part and denied it in part. It dismissed plaintiff's claim regarding his demotion from the trust position to his career position, ruling that defendants were not only entitled to immunity from damages but that plaintiff was not entitled to an injunction reinstating him to the trust position. But the court denied summary judgment regarding Feliciano's claim that dismissal from his career position violated his rights under the due process clause and the First Amendment. 671 F.Supp. 103.

Defendant Rivera Cruz now appeals from the district court's order denying him qualified immunity from damages stemming from plaintiff's claims that he was dismissed from his career position in violation of his due process and First Amendment rights. 1 Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Defendant argues that the procedures he followed in dismissing plaintiff did not contravene clearly established due process rights. He further argues that he is entitled to qualified immunity from damages related to plaintiff's First Amendment claims. We hold that the district court should have granted defendant Rivera Cruz qualified immunity from damages arising out of plaintiff's due process claim, but agree with the district court that the defendant was not entitled, at the present stage of the proceedings, to a summary judgment allowing him qualified immunity relating to plaintiff's two First Amendment claims.

I. PROCEDURAL DUE PROCESS CLAIMS

The uncontroverted materials attached to defendants' summary judgment motion show that defendant Rivera Cruz notified plaintiff, before dismissing him from his career position, of charges pending against him that could warrant his dismissal, explained the evidence behind these charges, and offered plaintiff an opportunity to respond to these charges. 2 In a letter to plaintiff dated May 13, 1985, defendant stated that plaintiff had misrepresented his previous job experience in his 1978 application for his first position in the Department of Justice. The letter explained that the post for which plaintiff was first hired, a transitory position of Planning Technician III, required at a minimum that applicants have at least one year's experience as a "Planning Technician II." The letter goes on to assert that while plaintiff indicated on his 1978 job application that he had three years of such experience in his previous job as a Planning Technician for the Municipality of San Juan, defendant's investigation revealed that plaintiff had only two-and-a-half months of experience as a Planning Technician. Consequently, the letter explains,

Since you did not comply with the minimum requisites to hold the position as Evaluation Technician III, your appointment to said position is null and lacks validity. In the same manner, the subsequent regular appointments to Planning Technician IV and Executive Officer V are null, since they were made based on the experience illegally obtained through null appointments.

The letter also charged that plaintiff did not resign from his previous job with the Municipality of San Juan until a week after being appointed to the Department of Justice, thus receiving compensation for both these jobs during this one week. The letter concludes with the following:

The aforementioned facts constitute sufficient elements to file charges and to separate you from your present position as Executive Officer V which you at present hold.

As Secretary of Justice of this Department I notify you of your right to an informal administrative hearing to state your version and/or show cause as to why we should not proceed to dismiss you from the public service. Therefore, we are granting you a period of fifteen (15) work days as of the date of receipt of this letter, within which period you must request the hearing and/or submit in writing, if you so prefer, your reaction to these charges.

Plaintiff responded in a letter dated May 16, 1985, acknowledging receipt of defendant's letter and stating "that I will make the corresponding arguments in the Federal Court of Puerto Rico, where I have filed a lawsuit." Plaintiff never requested a pre-termination hearing, which was never held. On June 10, 1985, defendant Rivera Cruz wrote plaintiff a letter dismissing him from his position as Executive Functionary V. The letter restated what defendant had said in his May 13 pre-termination letter and advised plaintiff of his right to seek a post-termination administrative review of the dismissal before the Board of Appeals of the Personnel Administrative System as provided by P.R. Laws Ann. tit. 3, Secs. 1394-1395 (1978).

Plaintiff has not been clear as to how the procedures defendant followed in dismissing him deprived him of due process. Putting aside his conclusory allegations that the pre-termination hearing offered to plaintiff was a "sham," plaintiff's claim boils down to his argument that the pre-termination hearing offered to him should have been before an impartial decisionmaker rather than the same agency that had brought charges against him. 3 Defendant concedes that plaintiff, as a career employee, had a property interest in continuous employment. See P.R. Laws Ann. tit. 3, Sec. 1336 (1978). Cf. Laureano-Agosto v. Garcia-Caraballo, 731 F.2d 101 (1st Cir.1984). Defendant argues, however, that he complied with the due process requirements set forth in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and that, because he violated no clearly established law, he is entitled to qualified immunity.

We agree with defendant that he is entitled to qualified immunity from damages arising from plaintiff's claim that defendant violated his procedural due process rights in dismissing him from his career position. 4 The procedures defendant followed accord with the guidelines set forth in Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495. As there appears to have been no constitutional violation at all in the procedures afforded, it follows that defendant was entitled to qualified immunity because his "actions could reasonably have been thought consistent with the rights [he is] alleged to have violated." Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In Loudermill, the Supreme Court, while holding that "some kind of hearing" is required, 470 U.S. at 542, 105 S.Ct. at 1493, stated that "the pretermination 'hearing' ... need not be elaborate." Id. at 545, 105 S.Ct. at 1495. "The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. at 546, 105 S.Ct. at 1495. The defendant complied with these guidelines. Defendant's May 13 letter notified plaintiff of the charges against him, explained the evidence behind the charges, and offered plaintiff a chance to respond to the charges in an informal hearing. Plaintiff chose not to accept this offer. In addition, Loudermill, in explaining why a pre-termination hearing is required, indicates that the pre-termination hearing may be before the employer: such a hearing is "the only meaningful opportunity to invoke the discretion of the...

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