Kercado-Melendez v. Aponte-Roque, KERCADO-MELENDE

Decision Date07 May 1987
Docket NumberP,KERCADO-MELENDE,APONTE-ROQUE,No. 86-1853,86-1853
Citation829 F.2d 255
Parties41 Ed. Law Rep. 1240 Ipcia M.laintiff, Appellee, v. Awilda, etc., Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Carlos Del Valle, with whom Hector Rivera Cruz, Secretary of Justice, Ramirez & Ramirez and Marcos A. Ramirez Irrizarry, Hato Rey, P.R., were on brief, for defendant, appellant.

Hector Gonzalez Lopez, with whom Hector Urgell Cuebas and Pedro Miranda Corrada, San Juan, P.R., were on brief, for plaintiff, appellee.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, * Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant Awilda Aponte-Roque, Secretary of the Department of Public Instruction (DPI) in Puerto Rico, appeals a judgment entered against her in a section 1983 suit brought by plaintiff-appellee Ipcia M. Kercado-Melendez. Kercado had alleged that she was fired from her position as superintendent of the Dorado School District because of her political affiliation with the Partido Nuevo Progresista (PNP). The United States District Court for the District of Puerto Rico, sitting without a jury, ordered Kercado reinstated to her former position, and awarded her over $37,000 in back pay and damages. This appeal by Aponte followed.


Ipcia Kercado worked for the Department of Public Instruction for eighteen years, rising through the ranks until she attained the position of superintendent for the Dorado School District. Kercado was well known in Dorado as a prominent member of the Partido Nuevo Progresista, which was deposed as Puerto Rico's ruling party by the Partido Popular Democratico (PPD) in the election of 1984. In January, 1985, Awilda Aponte-Roque, a PPD member, was appointed Secretary of the DPI.

On October 28, 1985, Kercado received a complaint 1 from the Secretary of Public Instruction cancelling her teaching certificate and dismissing her as superintendent of the Dorado School District. It charged Kercado with incompetence, negligence, insubordination, and improper conduct. Kercado was accused of keeping two teachers in administrative positions during the month of August, 1985, when they should have begun to resume their teaching duties. It was also alleged that she improperly impeded the Dorado district's assistant superintendent, Hector Lopez Maldonado, from performing his duties. In addition, Kercado was charged with failing to process fourteen teacher assistant appointments.

The complaint informed Kercado that Aponte, in her capacity as Secretary of the DPI, had decided to "permanently cancel your teacher certificate(s) which you hold in order to teach in the public and private schools of the Commonwealth of Puerto Rico and [to] dismiss you from your post." The cancellation order which became effective upon receipt by Kercado stated that, pursuant to Puerto Rico law, she had ten days to appeal the order to the Board of Appeals of the Public Education System. Such an appeal would stay the effect of the cancellation order, substituting in its stead a suspension of Kercado's employment and salary pending the outcome of her appeal. The order further stated that if Kercado did not appeal the cancellation within ten days, it would become "final and binding."

On November 5, 1985, Kercado filed an appeal with the Board of Appeals, which scheduled a hearing on the charges for November 27. On November 7, Kercado instituted an action in the United States District Court for the District of Puerto Rico, claiming that her dismissal was prompted by her affiliation with the PNP. Kercado also asserted that she had been denied due process, because she had not been given an opportunity to respond to the charges against her prior to the Secretary's termination action. She sought either a temporary restraining order or a preliminary injunction. The following day, November 8, Kercado withdrew her appeal from the Board of Appeals.

After Kercado had filed her action in federal court, and withdrawn her administrative appeal, the Secretary invited her to appear at an informal hearing scheduled for November 14, 1985. Kercado wrote a letter to the Secretary in which she declined the invitation to appear at the informal hearing. In the letter, she noted that a "show cause" hearing was scheduled in federal court on November 18, which would address the issue of whether the failure to grant her a hearing before the issuance of the cancellation order violated her due process rights. On November 18, the Secretary dismissed all charges against Kercado and reinstated her as superintendent of the Dorado School District.

One week later, the Secretary tried again to dismiss Kercado. On November 25, Kercado received a letter requesting her presence at an informal hearing on charges against her. The hearing took place the following day, November 26, before Elba Rodriguez Fuentes, Director of the Legal Division at the DPI. Kercado was read the charges against her and given the opportunity to respond. No evidence or witnesses were presented by either side at the hearing.

On December 9, Kercado was served with an order cancelling her superintendent's certificate and dismissing her from employment with the DPI. The December 9 order enumerated the same charges contained in the October 28 order, albeit in a more condensed form. The order notified Kercado of her right to file an administrative appeal, and informed her that a failure to file such an appeal within ten days would render the order "final and binding."

Kercado declined to file an administrative appeal; instead, she pressed her action in the federal court. She amended her original complaint and sought injunctive relief and damages under 42 U.S.C. Sec. 1983. The district court agreed with Kercado that she had been dismissed from her position as superintendent because of her political affiliation with the PNP. The court found the charges brought by the Secretary against Kercado to be without merit. It noted further that, even accepting the facial validity of the Secretary's allegations, they were not serious enough "to warrant the discharge of an employee of plaintiff's caliber who had been with the DPI for eighteen years." (Emphasis in original.) The court also held that Kercado had been deprived of her due process rights when the Secretary dismissed her on October 28, 1985, without granting her a pretermination hearing. Accordingly, the district court ordered the Secretary to reinstate Kercado as superintendent of the Dorado School District, 641 F.Supp. 1326. Kercado was awarded $12,074.50 in back pay, $15,000 in actual damages and $10,000 in punitive damages.


There are four issues on appeal. First, the Secretary urges that the district court should have abstained from hearing the case because Kercado could have pressed her claims in the state administrative appeal that was available to her. The Secretary points out that, had Kercado been dissatisfied with the result in the administrative proceeding, she could have appealed the decision to the commonwealth courts of Puerto Rico. Second, Aponte submits that the court erred in holding that Kercado's due process rights were violated, since she could have filed an administrative appeal and received a hearing before her termination became fully operative. Third, the Secretary also contends that the district court erred in finding that Kercado had been dismissed for political reasons. She argues that the charges brought against Kercado were substantive and legitimate grounds for dismissal. Fourth, it is argued that the district court erroneously granted Kercado compensatory and punitive damages. We consider each of these contentions seriatim.


The Secretary avers that the district court erred when it failed to dismiss the case in accordance with the doctrine established in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The federal plaintiff in Younger, John Harris, Jr., was being prosecuted under a state criminal syndicalism statute. He asked a three-judge federal district court to enjoin state criminal proceedings instituted against him, alleging that his prosecution would immediately and irreparably injure his first amendment rights. The three-judge court held that the criminal syndicalism statute was void due to vagueness, and restrained the state from further prosecution of Harris. The Supreme Court reversed, holding that the district court should have abstained from hearing Harris' claim. The Court stated that considerations of federalism and comity dictated that a federal court should refrain from deciding broad constitutional challenges to the legitimacy of a state criminal proceeding, provided that the state proceeding was undertaken in good faith and the federal plaintiff was given an adequate opportunity to press his constitutional claims in the state forum. Younger v. Harris, 401 U.S. at 43-53, 91 S.Ct. at 751-55.

Since Younger, the Supreme Court has invoked the abstention doctrine to overturn federal court challenges to the constitutionality of pending state civil proceedings. Penzoil Co. v. Texaco, Inc., --- U.S. ----, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Those cases featured federal plaintiffs who had lodged broad constitutional attacks on the legitimacy of state civil proceedings instituted against them. In each case, the federal court was asked to enjoin a contemporaneous state civil proceeding pending against the federal plaintiff; the relief sought by the federal plaintiff was directed...

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