Jimenez Fuentes v. Torres Gaztambide

• Decision Date: 19 September 1986
• Docket Number: No. 85-1655,85-1655
• Citation: 807 F.2d 236
• Parties: Arnaldo JIMENEZ FUENTES, et al., Plaintiffs, Appellees, v. Honorable Jaime TORRES GAZTAMBIDE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 236

807 F.2d 236

2 Indiv.Empl.Rts.Cas. 1362

Arnaldo JIMENEZ FUENTES, et al., Plaintiffs, Appellees, v. Honorable Jaime TORRES GAZTAMBIDE, et al., Defendants, Appellants.

No. 85-1655.

United States Court of Appeals First Circuit.

Sept. 19, 1986.

As Amended Sept. 24, 1986.

Marcos Ramirez-Irizarry with whom Hector Rivera Cruz, Secretary of Justice, Ramirez & Ramirez, and Marcos A. Ramirez-Lavandero, Hato Rey, P.R., were on brief for defendants, appellants.

Frank Rodriguez-Garcia, Ponce, P.R., for plaintiffs, appellees.

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

OPINION EN BANC

COFFIN, Circuit Judge.

Plaintiffs-appellees, Arnaldo Jimenez Fuentes and Jose Vicente Vazquez, claim that they were transferred from their government positions for political reasons in violation of the first and fourteenth amendments. After a lengthy hearing, the United States District Court for the District of Puerto Rico issued a preliminary injunction, ordering their reinstatement. A panel of this court denied a stay, granted an expedited appeal, and affirmed the order of the district court. After the panel denied rehearing, this court vacated the panel's opinion, setting the case for rehearing en banc. In light of full briefing and oral argument, and a review of the district court hearing and the relevant case law, we reverse the issuance of a preliminary injunction. ¹

I

Plaintiffs Jimenez Fuentes and Vicente Vazquez are members and active participants of the Partido Nuevo Progresista (PNP), the ruling party in Puerto Rico from 1977 to 1985. They were two of the eleven Regional Directors of the Puerto Rico Urban Development and Housing Corporation (CRUV--Corporacion de Renovacion Urbana y Vivienda). CRUV is a public corporation, 17 L.P.R.A. Secs. 21-25 (1984), attached to the Department of Housing of the Commonwealth of Puerto Rico, 3 L.P.R.A. Sec. 441e (1982). As Regional Directors, plaintiffs worked in the Program of Public Housing, the principal division of CRUV.

In November 1984, the Partido Popular Democratico (PPD) defeated the PNP in the gubernatorial election, and assumed power in January 1985. Defendants-appellants, Jaime Torres Gaztambide (Secretary of the Department of Housing of Puerto Rico) and Quevedo del Rio (Executive Director of CRUV), both PPD members, were appointed within two months. In March 1985, they transferred plaintiffs from the positions of Regional Director to the plaintiffs' previously-held positions at CRUV.

II.

At the outset we note the burden plaintiffs faced in order to gain a preliminary injunction:

"In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction."

Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981) (quoting Women's Community Health Center, Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979) (citations omitted) ) (emphasis added).

For purposes of appellate review, the issue is whether "the issuance of the injunction, in light of the applicable standard, constituted an abuse of discretion." National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 823 (1st Cir.1979) (quoting Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ). The constitutionality of the demotions was not before the district court and is not presently before us because there has been no trial on the merits. "The only question properly before the Court is whether or not a preliminary injunction should have been issued to" reinstate plaintiffs to their positions as Regional Directors. See Thornburgh v. American College of Obstetricians and Gynecologists, --- U.S. ----, ----, 106 S.Ct. 2169, 2207, 90 L.Ed.2d 779 (1986) (O'Connor, J., dissenting). We emphasize that because we hear this matter on appeal from a grant of a preliminary injunction, our "conclusions" and "holdings" as to the merits of the issue presented are to be understood as statements as to probable outcomes. Planned Parenthood, 641 F.2d at 1009. "We eliminate repeated reference to this fact at each relevant juncture of this lengthy opinion for purposes of brevity and simplicity." Id.

III.

Defendants claim that the district court abused its discretion in finding that the plaintiffs had shown a likelihood of success on the merits. To support this argument, they challenge three independent findings by the district court: one, that plaintiffs were transferred for political reasons; two, that the positions of Regional Directors were not positions for which political affiliation was appropriate; and three, that plaintiffs would not have been transferred but for their political affiliation. Defendants correctly point out that if any of the findings were an abuse of discretion, we must reverse the issuance of the preliminary injunction.

A.

We cannot say that the district court abused its discretion in finding that the plaintiffs were transferred for political reasons. See Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir.1979) (whether protected conduct was a substantial or motivating factor in decision to discharge plaintiff). The court found that the proximity in time between the defendants' appointment and the plaintiffs' transfer indicated an underlying political motive, especially in light of the unrefuted evidence that plaintiffs were active PNP members. ² Although defendant Quevedo del Rio testified that he did not know the plaintiffs' political affiliation when he dismissed them, the district court did not believe this statement, in part because of Quevedo's admission that a Regional Director, to be effective, must be a member of the PPD. In response to the defendants' assertion that plaintiffs were transferred because of their incompetency, the district court found that at no time prior to their removal were plaintiffs ever apprised of any such allegation. Additionally, plaintiffs had never been admonished or disciplined for their work. Whether or not we would have reached the same conclusion as to this issue, we cannot say that the district court abused its discretion.

B.

We now address the dispositive issue--whether political affiliation is an appropriate requirement for the position of CRUV Regional Director.

1. Survey of the Authorities

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that public employees who alleged they were discharged because of their political affiliation stated a claim for violation of their first and fourteenth amendment rights. ³ Writing for a plurality, Justice Brennan determined that a dismissal based on an employee's failure to support a political party clearly infringes First Amendment freedoms of belief and association. Elrod, 427 U.S. at 359-60, 96 S.Ct. at 2682-83. The conditioning of public employment on political affiliation could survive constitutional challenge only if it furthered a vital governmental interest ⁴ by a means least restrictive of first amendment freedoms. Id. at 362-63, 96 S.Ct. at 2684. The plurality found that a valid interest was to ensure that "representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." Id. at 367. But a patronage system involving the wholesale dismissal of public employees for partisan reasons, applied without regard to an employee's responsibilities, was not the least restrictive means of serving that interest. The plurality thus concluded that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end." Id. at 367, 96 S.Ct. at 2687.

Apart from noting that it is not always easy to determine when a particular position is policymaking, id. at 367, 96 S.Ct. at 2686, the plurality opinion provides little guidance for lower courts because it did not apply the new legal standard to the particular positions in question. It did, however, suggest that employees who act as advisers, who formulate plans for implementing broad goals, or whose responsibilities are either not well-defined or of broad scope are more likely to function as policymakers. 427 U.S. at 367-68, 96 S.Ct. at 2686-87.

Justice Stewart's concurring opinion in Elrod, necessary for the 5-3 decision, ⁵ narrowed the scope of the plurality's protection formulation. His opinion concludes that confidential, as well as policymaking, employees can be discharged because of their political beliefs. See id. at 375, 96 S.Ct. at 26900.

Subsequently, in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court, with Justice Stevens writing for a majority, departed from the policymaking and confidential labels espoused in Elrod. It first recognized that the labels were underinclusive, because "a position may be appropriately considered political even though it is neither confidential nor policymaking in character." Id. at 518, 100 S.Ct. at 1294. ⁶ More importantly, the Court found that the labels were overinclusive, because party affiliation is not a relevant consideration for all policymaking or confidential positions. Id. The Court distinguished between policymaking positions related to "partisan political interests [or concerns]," id. at 519, 100 S.Ct. at 1295, which would be vulnerable to discharge, and positions having no bearing on such concerns, which would be protected by the First Amendment. ⁷ As an example of the latter, the Court discussed the position of a state university football coach, which is policymaking, but for which it cannot seriously be argued that ...