Figueroa-Rodriguez v. Lopez-Rivera, FIGUEROA-RODRIGUEZ

• Citation: 878 F.2d 1478
• Decision Date: 25 April 1989
• Docket Number: LOPEZ-RIVERA,87-1863,GONZALEZ-GONZALE,Nos. 87-1319,87-1801,FIGUEROA-RODRIGUEZ,P,FONTANE-REXAC,s. 87-1319
• Parties: Jose Manuel, et al., Plaintiffs, Appellees, v. Aurelio, etc., Defendant, Appellant. Luis J.laintiff, Appellee, v. Carmen Sonia ZAYAS, etc., Defendant, Appellant. Victor M.laintiff, Appellee, v. PUERTO RICO ELECTRIC POWER AUTHORITY, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1478

878 F.2d 1478

Jose Manuel FIGUEROA-RODRIGUEZ, et al., Plaintiffs, Appellees, v. Aurelio LOPEZ-RIVERA, etc., Defendant, Appellant.

Luis J. GONZALEZ-GONZALEZ, Plaintiff, Appellee, v. Carmen Sonia ZAYAS, etc., Defendant, Appellant.

Victor M. FONTANE-REXACH, Plaintiff, Appellee, v. PUERTO RICO ELECTRIC POWER AUTHORITY, et al., Defendants, Appellants.

Nos. 87-1319, 87-1801, 87-1863.

United States Court of Appeals, First Circuit.

April 25, 1989.

Alice Net Carlo and Garcia Rodon, Correa Marquez & Valderas on supplemental memoranda for rehearing for appellant Aurelio Lopez-Rivera.

Carlos Del Valle, Hector Rivera Cruz, Secretary of Justice, Rafael Ortiz Carrion, Sol. Gen., and Ramirez & Ramirez on supplemental brief for appellant Carmen Sonia Zayas.

Alice Net Carlo and Garcia Rodon, Correa Marquez & Valderas on supplemental memoranda for rehearing for appellants Puerto Rico Elec. Power Authority, et al.

Pedro Miranda Corrada and Hector Urgell Cuebas on briefs for appellees.

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

OPINIONS EN BANC

BREYER, Circuit Judge.

These three Puerto Rican "political discharge" cases raise a single legal question: do the defendants enjoy "qualified immunity" (protecting them from liability for damages) in dismissing (1) the Director of the Board of Appeals of the Department of Social Services, Gonzalez-Gonzalez v. Zayas, 878 F.2d 1500; (2) two Zone Fire Chiefs, Figueroa-Rodriguez v. Lopez-Rivera, 878 F.2d 1488; and (3) the Assistant Chief of the Supply Division of the Puerto Rico Electric Power Authority, Fontane-Rexach v. PREPA, 878 F.2d 1493. In the first two instances we conclude that the law, at the time of dismissal, was not "clearly established" in plaintiffs' favor. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987); Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986). Hence, the defendants enjoy "qualified immunity;" and we must therefore reverse the district court holdings that would permit the plaintiffs to obtain damage awards. In the third case, Fontane-Rexach, the defendants have not established their right to "qualified immunity," thus the district court's denial of summary judgment on the matter was legally correct.

I.

In each of these cases, the defendant, a government official, dismissed a plaintiff in 1985 from a moderately high level, Commonwealth-government position, allegedly because the plaintiff belongs to the political party that lost the 1984 gubernatorial election. The First Amendment of the Constitution forbids such dismissals unless "party affiliation is an appropriate requirement" for the job in question. 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). In each case, the defendant asked the district court to dismiss the damage claim on the grounds that, at minimum, Elrod/Branti did not "clearly " forbid them to act. Harlow, supra (government officials enjoy "qualified immunity" where the law does not "clearly" forbid their actions). In each case, the district court denied defendants' motion to dismiss the damage claim, for, in its view, the law was "clear" at the time of dismissal that "political affiliation" was not an "appropriate requirement" for the job. The defendants in each case took an interlocutory appeal, Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Bonitz, supra; De Abadia v. Izquierdo-Mora, 792 F.2d 1187, 1190 (1st Cir.1986); in each case a panel of this court affirmed the district court. The full court has vacated the panel decisions, and it now reviews the district courts' determinations, en banc.

II.

Our task is simply to determine whether or not the three jobs in question clearly fell outside the scope of the Elrod/Branti "political affiliation" exception at the time of the discharges in question (all of which occurred prior to this circuit's recent spate of precedent relative to Puerto Rico employment cases). See Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1041 (1st Cir.1988) ("The question here is thus whether it was objectively clear in January 1985, before the appearance of any of this court's precedent in the recent flood of Puerto Rico political firing cases, that [plaintiff's] position was one to which political affiliation lacked a valid relation."). In previous cases, we have elaborated our views both about what the exception means, and about how "clear" that meaning is. We shall summarize them briefly:

1. In Mendez-Palou, 813 F.2d at 1259, this circuit said that the question in a "qualified immunity" case, such as this one, is "whether [at the time of dismissal] it was clearly established that employees in the particular positions at issue, in light of the responsibilities inherent in those positions, were protected from patronage dismissal." (Emphasis in original.) We added that a defendant enjoys "qualified immunity" as long as the job in question "potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication." Id. at 1259. (Emphasis added.) And, we have said that "defendants will normally enjoy qualified immunity from damage liability in upper-level, managerial-type job dismissal cases, cases where the jobs in question are not purely technical or scientific in nature." Juarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st Cir.1987).

2. We have also explained why we believe that in 1985, it was difficult to determine with clarity whether a moderately high-level government position was entitled to First Amendment protection. See generally Mendez-Palou, supra; Juarbe-Angueira, 831 F.2d at 13-14; De Abadia v. Izquierdo-Mora, 792 F.2d at 1194 (Campbell, C.J., concurring); see also Ness v. Marshall, 660 F.2d 517 (3d Cir.1981). For one thing, the Supreme Court in Elrod/Branti described the exception in general language, using as illustrative examples only obviously nonpolitical jobs, such as a football coach or an assistant public defender. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95. For another thing, unlike many other areas of law, it is here inherently difficult to use the exception's purpose to define with any degree of certainty the scope of its application. The exception seems designed "to separate instances where (1) a newly elected political party can legitimately replace those who hold important offices in order to carry out its electoral mandate and to provide voters with the confidence it is doing so (i.e., where a 'new broom' ought to 'sweep clean') from (2) pure political patronage (i.e., 'jobs for the boys')." Juarbe-Angueira, 831 F.2d at 13. The reason that the exception, even when read in light of this purpose, is far from self-defining is that many areas of government that sound technical (e.g., antitrust, development banks, park services, or, at a more local level, procurement policies, sewage disposal, road maintenance) may, depending on time and circumstance, become "politically charged." Logic does not tell us where and when government matters may become political issues.

Finally, at least through 1985, lower courts applied Branti 's exception broadly, finding that First Amendment protection only bars politically motivated dismissals from relatively low level, or highly technical, jobs. (See Juarbe-Angueira, 831 F.2d at 16, for a list of those cases.)

3. We have also held, in respect to the Commonwealth of Puerto Rico, that its own civil service classification system, while not "determinative of the Elrod/Branti question," is nonetheless "entitled to some deference." Jimenez-Fuentes v. Torres-Gaztambide, 807 F.2d 236, 246 (1st Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). That is because (a) Puerto Rico's own civil service system permits a fairly small number of positions (no more than 25 per agency) to be classified as confidential (i.e., potentially subject to politically-based discharge), P.R.Laws Ann. tit. 3, Sec. 1351 (1978 & Supp.1987); (b) the personnel law bases the classification of a confidential position on criteria similar to those enumerated in Elrod and Branti (whether the job involves "formulation of public policy," P.R.Laws Ann. tit. 3, Sec. 1350, or "direct service to the head or subhead of the agency which require a high degree of personal trust," P.R. Personnel Bylaws: Areas Essential to the Merit Principle, Sec. 5.2 (1976)); and (c) the legislators and administrators are more familiar with the issues and subjects that potentially may affix a particular job at a particular time with a "political charge." In addition, in the context of qualified immunity, the fact that the Commonwealth government had classified a particular job as a trust or confidence position, makes it more difficult to say that a Puerto Rican official should have known that the law "clearly " forbids dismissal. Cf. Rodriguez-Rodriguez v. Munoz-Munoz, 808 F.2d 138 (1st Cir.1986) (Commonwealth court cases "not conclusive as to the state of the law").

4. So far, this circuit, applying these principles in "qualified immunity" cases involving discharges in 1985, has found, in the vast majority, that the defendants did enjoy qualified immunity in respect to claims of potentially forbidden dismissals. See Juarbe-Angueira, 831 F.2d at 16 for a list of cases. We have found no qualified immunity in only two instances: one involved the director of a riding school, Hernandez-Tirado v. Artau, 835 F.2d 377 (1st Cir.1987), and the other involved domestic employees (although in the latter case we did not preclude defendants from presenting additional evidence at trial, in light of the fact that the employees worked at the Governor's Mansion), Vasquez-Rios v. Hernandez-Colon, 819 F.2d 319, 329 (1st Cir.1987).

III.

We now apply these...