Mariani Giron v. Acevedo Ruiz, 87-1140

• Decision Date: 16 September 1987
• Docket Number: No. 87-1140,87-1140
• Citation: 834 F.2d 238
• Parties: William MARIANI GIRON, et al., Plaintiffs, Appellees, v. Heriberto ACEVEDO RUIZ, etc., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 238

834 F.2d 238

William MARIANI GIRON, et al., Plaintiffs, Appellees, v. Heriberto ACEVEDO RUIZ, etc., et al., Defendants, Appellants.

No. 87-1140.

United States Court of Appeals First Circuit.

Heard Sept. 16, 1987.

Decided Dec. 3, 1987.

Paul B. Smith, Jr., with whom Pedro Juan Perez Nieves, Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera Cruz, Secretary of Justice, and Rafael Ortiz Carrion, Sol. Gen., Hato Rey, P.R., were on brief, for defendants, appellants.

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

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

BAILEY ALDRICH, Senior Circuit Judge.

Plaintiff William Mariani Giron, hereinafter Mariani, was discharged as a zone coordinator of the Puerto Rico Civil Defense Agency (CDA) in the early spring of 1985 after the change in the political party holding the governorship. The discharge letter, authored by defendant Heriberto Acevedo Ruiz, the newly appointed Civil Defense Director, gave no reason for removal, but merely stated that the discharge was pursuant to the Puerto Rico Public Service Personnel Act, P.R.Laws Ann. tit. 3, Sec. 1350 (1978), Mariani's position being one of "trust or confidence." Even if this was contractually permissible, it did not destroy Mariani's right to claim an unfair political discharge under federal law, 42 U.S.C. Sec. 1983, or even under the law of the Commonwealth, P.R.Laws Ann. tit. 3, Sec. 1394 (1978); Diaz de Llovet v. Office of the Governor, 112 P.R.Dec. 747 (1982) (affording administrative remedy for back pay). Mariani chose to sue in the District Court for reinstatement and damages.

The court took extensive testimony, and ultimately granted Mariani's request for a preliminary injunction of reinstatement. We denied defendants' request for a stay pending appeal, and now face the preliminary injunction itself. We affirm.

In the district court, defendants took the position that Mariani's removal was not politically motivated; that even if it was, his position was such that political affiliation was an appropriate requirement, so that defendants were free to remove him, and, finally, that he would have been discharged in any event. The court rejected all three defenses, or, more exactly, held that plaintiff had made, as to each, the four showings needed for a preliminary injunction. Cf. Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006 (1st Cir.1981).

The court's rejection of the first defense was telling, and defendants do not presently contest it. As to the second, the court found reason to believe that the entire CDA, because of its peculiar tie-in with the federal government, and the nature of its activities, was outside of the political affiliation area, and hence, of course, so was Mariani. It is not necessary to go this far. At a minimum, applying the factual findings made at length in the court's opinion, Mariani was adequately found to fall well without the political exception.

Counting the Governor as CDA Chief, Mariani was sixth level, placing under a zone coordinator supervisor. Defendants' conjured political aspects are a combination of imaginative thinking and affirmatively erroneous reasons. The assertion, for example, that an employee engaged by his superiors would be more loyal and trustworthy than a carryover undercuts the entire rationale of the Supreme Court decisions. As we have said, political firing is constitutional only "when it serves the interests of the government, not a party organization; it serves a governmental interest when used for policymakers or confidential employees whose work involves issues where there is room for political disagreement on goals or their implementation." Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 240 n. 7 (1st Cir.1986) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1888, 95 L.Ed.2d 496 (emphasis added). Mere employee-employer loyalty is not enough. Equally irrelevant is defendants' truism that good performance reflects well on the party. Poor performance may be a reason for discharge, but that means performance, not party affiliation. Defendants' contentions come to little more than nostalgic affection for the Public Service Personnel Act and an unwillingness to recognize the principles that they face.

Finally, we do not fault the court's probability finding as to defendants' true motivation. It was fully warranted in regarding their subjective criticisms of Mariani's performance, and need for improvement, as post hoc rationalization and pretextual.

In sum, the district court acted well within the limits of its Rule 65 discretion as to each of the Planned Parenthood...