Goyco de Maldonado v. Rivera, 87-1872

• Decision Date: 01 February 1988
• Docket Number: No. 87-1872,87-1872
• Citation: 849 F.2d 683
• Parties: Mildred I. GOYCO de MALDONADO, Plaintiff, Appellee, v. Jose A. RIVERA, etc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 683

849 F.2d 683

Mildred I. GOYCO de MALDONADO, Plaintiff, Appellee, v. Jose A. RIVERA, etc., Defendant, Appellant.

No. 87-1872.

United States Court of Appeals First Circuit.

Heard Feb. 1, 1988.

Decided June 9, 1988.

Carlos Del Valle with whom Hector Rivera Cruz, Secretary of Justice, Com. of Puerto Rico, Rafael Ortiz Carrion, Sol. Gen., Marcos A. Ramirez Irrizarry, Jose A. Sanchez Alvarez and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendant, appellant.

Pedro Miranda Corrada, Hato Rey, P.R., with whom Hector Urgell Cuebas, Santurce, P.R., was on brief, for plaintiff, appellee.

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

SELYA, Circuit Judge.

Mildred I. Goyco de Maldonado, plaintiff-appellee, sued for damages, reinstatement, and ancillary relief in the aftermath of her dismissal on February 11, 1985 as first vice president of the Puerto Rico Housing Bank and Finance Agency (Housing Bank). The gravamen of her action was twofold: she claimed (1) that she lost her job because of her ties with a particular political party in derogation of her first amendment associational rights, and (2) that she had been denied due process. Defendant-appellant Jose A. Rivera, president of the Housing Bank, sought partial summary judgment on the first amendment claim, asserting that he was qualifiedly immune from the claim for money damages. See generally Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The district court rejected Rivera's qualified immunity argument, Goyco de Maldonado v. Rivera, 671 F.Supp. 100, 102-03 (D.P.R.1987), but simultaneously granted him summary judgment on the due process claim (ruling that plaintiff had no constitutionally protected property interest in the position). Id. at 103. Defendant filed this interlocutory appeal.

I

The ground we must traverse is, essentially, all too familiar. This is but the latest in "the long, gray line of suits brought pursuant to 42 U.S.C. Sec. 1983 in the aftermath of Puerto Rico's 1984 gubernatorial election." Figueroa-Rodriguez v. Lopez-Rivera, Nos. 87-1319, 1320, slip op. at 2 (1st Cir. Apr. 22, 1988). See generally Juarbe-Angueira v. Arias, 831 F.2d 11, 12-13 (1st Cir.1987) (listing typical cases), cert. denied, --- U.S. ----, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988). Like those who have marched before her, Goyco de Maldonado hoists the Elrod-Branti banner. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

We are mindful of the narrowness of our charge. Our role is "... [to] consider only the isthmian question of whether the denial of partial summary judgment based on qualified immunity was proper." Fontane-Rexach v. Puerto Rico Electric Power Authority, No. 87-1801, slip op. at 3 (1st Cir. Apr. 22, 1988) (citing Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985)). Because of this, we cannot at this time properly take a view of any other matters contained in the district court's opinion. Id.

Where qualified immunity is the issue, the relevant query is whether, at the time of the challenged employment action, "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." Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir.1987) (emphasis in original). If not, qualified immunity applies, e.g., Nunez v. Izquierdo-Mora, 834 F.2d 19, 21 (1st Cir.1987) (per curiam); Juarbe-Angueira, 831 F.2d at 13-14, and the state actor/defendant is entitled to partial summary judgment immunizing him or her against the claims for money damages. Under the model which we have constructed for handling such cases,

we focus at this intermediate stage of the litigation exclusively upon the nature of the position which appellee held and the question of whether, at the time, it was clearly established that one in [appellee's] job capacity was protected against patronage dismissal.

Fontane-Rexach, slip op. at 3; see also Mendez-Palou, 813 F.2d at 1257-59.

II

Our independent examination starts with a consideration of the Housing Bank and the character of the position held by plaintiff in that agency. The bank is an instrumentality of the executive branch of Puerto Rico government, i.e., a public corporation attached to, and functioning as an adjunct of, the Commonwealth's Department of Housing. See P.R.Laws Ann. tit. 3, Sec. 441e (1973); P.R.Laws Ann. tit. 7, Sec. 901 et seq. (1974). The enabling legislation declared that the Housing Bank was created:

For the purpose of assisting the Government of the Commonwealth of Puerto Rico in its housing programs, and of developing more effectively its governmental responsibility of promoting the economy of Puerto Rico and the welfare of its inhabitants....

P.R.Laws Ann. tit. 7, Sec. 901 (1974). In particular, the bank's mission includes helping the government "in the discharge of its functions and duties with respect to the development of homes and the promotion of public welfare in Puerto Rico...." Id. at Sec. 917. To achieve such important ends, the Housing Bank has been granted a host of powers. See, e.g., id. at Secs. 910, 911.

In short, this institution is the driving force behind the Commonwealth's efforts to bring decent, affordable housing to persons and families of modest means. As such, the bank itself can plainly be said to be charged with a "politically sensitive mission." Mendez-Palou, 813 F.2d at 1260. This conclusion, we hasten to add, squares with our earlier assessment that other offshoots of the Department of Housing are bound up in the fabric of partisan political concerns. E.g., Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 260-61 (1st Cir.1987) (Rural Housing Administration); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-44 (1st Cir.1986) (en banc) (Urban Development and Housing Corporation), cert. denied, --- U.S. ----, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987).

The fact that the agency deals in politically significant matters does not end this phase of our investigation. As the Court has instructed, we must inevitably focus on whether the position at issue itself relates "to partisan political interests ... [or] concerns." Branti, 445 U.S. at 519, 100 S.Ct. at 1295. That is to say, once we have determined that the bureau for which plaintiff worked "handled matters potentially subject to partisan political differences," Mendez-Palou, 813 F.2d at 1258, we must then concentrate our attention upon whether, and if so how, "the plaintiff's position influenced the resolution of such matters." Id. We turn, therefore, to that facet of the inquiry.

Goyco de Maldonado served as first vice president (sometimes termed executive vice president for finance) of the Housing Bank. ¹ We attach as an Appendix the descriptive OP-16 classification questionnaire prepared by the Puerto Rico Central Office of Personnel. The parties have stipulated to the accuracy of this recital of the position's scope. We note at the outset that the office has considerable responsibility for directing the implementation of a range of important policies--a not-inconsequential consideration. See Bonilla v. Nazario, 843 F.2d 34, 37 (1st Cir.1988).

As a basis for denying qualified immunity to Rivera, appellee leans heavily upon our decision in De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987), a case involving the position of senior vice president (finance) of the Puerto Rico Government Development Bank. In that case, the plaintiff claimed to have been ousted from government employment in violation of the Elrod-Branti standard. The district court, finding that political affiliation was not an appropriate requirement for deChoudens's job, issued a preliminary injunction reinstating her. On appeal, we affirmed the granting of the injunction,

... because, although the position at issue involves policymaking, the reposing of confidence, and communicating, we presently conclude that such functions are so remote from advancing or thwarting the agency's partisan-responsive goals that political affiliation would not be considered an appropriate requirement.

De Choudens, 801 F.2d at 6.

Appellee assures us that the two posts were fair congeners, and that the suggested comparison appropriately matches apples with apples. The district court was convinced. Although De Choudens involved a different agency and a different position, it evaluated the situations as "equivalent." Goyco de Maldonado, 671 F.Supp. at 102. But the parallel, as we see it, is far from exact. The compendium of responsibilities attached to plaintiff's office seems to manifest a nexus which we found lacking in De Choudens, that is, a "relationship between [the] position and those strategy decisions that the leadership of the Bank might make in response to a new governor's administration in Puerto Rico." De Choudens, 801 F.2d at 9. Plaintiff is the person, for example, who (1) advises the president of the Housing Bank on a plethora of issues and who serves as his official representative both in Puerto Rico and abroad; (2) drafts legislation and testifies before the legislature in connection with such bills; (3) represents the bank before administrative agencies; (4) presides over the managerial committee when labor negotiations are in prospect; and (5) exercises substantial control in the personnel area. See Appendix. These duties, we think, go beyond those discussed in the De Choudens case. Cf. Nunez, 834 F.2d at 22-23 (distinguishing De Choudens vis-a-vis auxiliary director, fiscal resources of Health Facilities and Services Administration).

III

We need not probe the comparison too deeply, however, because De Choudens is distinguishable in ways more...