Galloza v. Foy

• Decision Date: 10 November 2004
• Docket Number: No. 03-2658.,03-2658.
• Citation: 389 F.3d 26
• Parties: Benito GALLOZA, a/k/a Benito Galloza Gonzalez, et al., Plaintiffs, Appellants, v. Norman E. FOY et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 26

389 F.3d 26

Benito GALLOZA, a/k/a Benito Galloza Gonzalez, et al., Plaintiffs, Appellants, v. Norman E. FOY et al., Defendants, Appellees.

No. 03-2658.

United States Court of Appeals, First Circuit.

Heard September 13, 2004.

Decided November 10, 2004.

Nydia Gonzalez Ortiz, with whom Santiago & Gonzalez was on brief for appellants.

Teresa M. Seda Ramos, with whom Sánchez Betances & Sifre, P.S.C. was on brief, for appellees.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

In this action, the plaintiffs, who once held identical appointed offices in the same government agency, claim that their ousters were rooted in politics and, thus, violated their rights under the First Amendment to the United States Constitution. As a fallback, they also claim that the adverse personnel actions infringed property rights secured to them by the Due Process Clause of the Fifth and Fourteenth Amendments. The district court brushed these claims aside and granted summary judgment in favor of the defendants. The plaintiffs now appeal. After careful perscrutation of the briefs and the record, we conclude that political affiliation is a permissible criterion for holding the positions at issue and that the plaintiffs lacked any constitutionally protected property interest in those positions. Consequently, we affirm the judgment below.

The essential facts are uncontroversial. In 1991, the Puerto Rico legislature established the Municipal Revenues Collection Center (familiarly known by its Spanish acronym, CRIM) to "collect, receive and allocate ... public funds" generated primarily through municipal property taxes. P.R. Laws Ann. tit. 21, § 5802. Organizationally, CRIM maintains nine regional offices, each of which operates under the aegis of a regional administrator. From 1993 through 2000, the New Progressive Party (NPP) controlled the central government of Puerto Rico. At various times during the NPP's reign, CRIM's executive director appointed plaintiffs-appellants Benito Galloza Gonzalez, Orlando Mas-Muñiz, and Luis Antonio Galarza-Pérez, each of whom had enjoyed a long and successful career as a bureaucrat, to serve as regional administrators.

The Popular Democratic Party (PDP) swept to victory in the November 2000 general elections. Subsequent thereto, CRIM's reconstituted board of directors named defendant-appellee Norman E. Foy as CRIM's executive director and defendant-appellee Euclides Martinez as deputy executive director. The new hierarchs requested the plaintiffs' resignations. When the plaintiffs balked, Foy discharged them from their regional administrator positions (although he reinstated them to the career positions that they previously had occupied). Foy then appointed others of his choosing to the newly vacated regional administrator positions. For purposes of this opinion, we assume that politics played a decisive role in these personnel moves (Foy and Martinez are members of the PDP, whereas the plaintiffs are members of the NPP).

The plaintiffs brought suit under 42 U.S.C. § 1983, arguing that (i) political affiliation is an inappropriate criterion for employment as a regional administrator of CRIM (and, thus, the defendants' actions in reliance on it constituted political discrimination), and (ii) each of them had acquired a property interest in the regional administrator's position (and, thus, the defendants' abrupt dismissals of them for partisan political reasons abridged due process). The defendants' riposte was that (i) political affiliation is an appropriate criterion for the effective performance of a regional administrator's duties, and (ii) the position is one of "trust," statutorily committed to free selection and removal (and, thus, not one in which a job-holder can acquire a constitutionally protected property interest). In a thoughtful rescript, the district court accepted the defendants' arguments and granted summary judgment accordingly. Gonzalez v. Foy, 286 F.Supp.2d 223 (D.P.R.2003). This appeal followed.

We review the entry of summary judgment de novo, taking all disputed facts in the light most hospitable to the nonmovants (here, the plaintiffs) and drawing all reasonable inferences therefrom in favor of the nonmovants. Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). In conducting this tamisage, we do not consider "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Summary judgment is proper only if the record, read in this manner, reflects that no genuine issue of material fact exists and that the moving party or parties are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

Having erected the summary judgment framework, we move to the plaintiffs' political discrimination claims. The First Amendment protects associational rights. Incorporated within this prophylaxis is the right to be free from discrimination on account of one's political opinions or beliefs. LaRou v. Ridlon, 98 F.3d 659, 661 (1st Cir.1996). This protection extends to matters of public employment: as a general rule, a government employer cannot discharge public employees merely because they are not sponsored by or affiliated with a particular political party. Elrod v. Burns, 427 U.S. 347, 350, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

Like most general rules, this rule admits of certain well-defined exceptions. One such exception is reserved for instances in which political affiliation is an "appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). This exception helps to ensure that elected representatives will not be hamstrung in endeavoring to carry out the voters' mandate. See Elrod, 427 U.S. at 367, 96 S.Ct. 2673. Policies espoused by a new administration, presumably desired by the citizens whose votes elected that administration, must be given a fair opportunity to flourish.

In an effort to hold the balance steady and true between an individual employee's legitimate First Amendment right to freedom of association and a new administration's legitimate interest in implementing its civic policies, the Supreme Court has decreed that a public employer, as a prerequisite for discharging an employee for political reasons, must demonstrate that political affiliation is an appropriate requirement for the position in question. Elrod, 427 U.S. at 362-63, 96 S.Ct. 2673. This means, in effect, that the employer must show that the position is confidential or policymaking in nature. Id. at 367, 96 S.Ct. 2673.

That may be more easily said than done; determining whether a position is "confidential" or "policymaking" is not a matter of inserting variables into a known equation and crunching the numbers. See, e.g., id. at 367, 96 S.Ct. 2673 (acknowledging that "[n]o clear line can be drawn between policymaking and nonpolicymaking positions"); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324 (1st Cir.1987) (noting that "[c]onfidentiality has many facets" in this context). Nor can the question be resolved by the simple expedient of examining the government's classification of a particular position (although that taxonomy may be entitled to some weight). See Branti, 445 U.S. at 518, 100 S.Ct. 1287; Jimenez-Fuentes v. Torres Gaztambide, 807 F.2d 236, 246 (1st Cir.1986) (en banc); see also Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir.1987) (warning that this court, in determining whether political affiliation is an appropriate job requirement, has "resisted rigid use of labels"). When all is said and done, the determination as to whether a particular office is policymaking or confidential in nature, so as to make political affiliation an appropriate requirement for holding it, is fact-specific.

This case involves positions that, according to the defendants, have sufficient policymaking implications to avoid the constitutional proscription against politically motivated discharges. To test that representation, we employ a two-pronged analysis. The first prong, derived directly from Branti, 445 U.S. at 519, 100 S.Ct. 1287, necessitates a high-level glimpse of the purpose of the employing agency and the role that the particular position occupies within it. Although conducted from the juridical equivalent of 50,000 feet, this reconnaissance should determine "whether the agency employing the plaintiff handle[s] matters potentially subject to partisan political differences," and should permit a tentative conclusion about the extent to which the particular position has the capacity to "influence the resolution of such matters." Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987). This first prong is satisfied (that is, a position may be regarded, at least provisionally, as a policymaking position) as long as the position potentially "involve[s] government decisionmaking on issues where there is room for political disagreement on goals or their implementation." Jimenez-Fuentes, 807 F.2d at 241-42.

As applied to putative policymakers, the second analytic prong aspires to actualize the potential of the particular position. This task necessitates a detailed examination into whether the specific responsibilities of the position sufficiently resemble those of a policymaker or office-holder whose functions are such that party affiliation is an appropriate criterion for tenure. Id. "The nature of the responsibilities is critical." Elrod, 427 U.S. at 367, 96 S.Ct. 2673.

To differentiate between policymakers and non-policymakers, we assay a wide array of factors, including the relative compensation level for the position, the technical expertise (if any) required to do the job, the extent to which the position involves supervision and control over others, the degree to...