Mendez-Palou v. Rohena-Betancourt

• Decision Date: 10 March 1987
• Docket Number: MENDEZ-PALO,Nos. 86-1267,GONZALEZ-CHAPEL,P,86-1555 and 86-1631,ROHENA-BETANCOURT,s. 86-1267
• Citation: 813 F.2d 1255
• Parties: Juan A.laintiff, Appellee, v. Santos, etc., Defendant, Appellant. Jose M. RODRIGUEZ RAMIREZ, Plaintiff, Appellee, v. Antonio, etc., Defendant, Appellant. Rafael GIMENEZ BOEHM, Plaintiff, Appellee, v. Jose L. RIEFKOHL, etc., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1255

813 F.2d 1255

2 Indiv.Empl.Rts.Cas. 1405

Juan A. MENDEZ-PALOU, Plaintiff, Appellee, v. Santos ROHENA-BETANCOURT, etc., Defendant, Appellant.

Jose M. RODRIGUEZ RAMIREZ, Plaintiff, Appellee, v. Antonio GONZALEZ-CHAPEL, etc., Defendant, Appellant.

Rafael GIMENEZ BOEHM, Plaintiff, Appellee, v. Jose L. RIEFKOHL, etc., Defendant, Appellant.

Nos. 86-1267, 86-1555 and 86-1631.

United States Court of Appeals First Circuit.

Argued Nov. 7, 1986.

Decided March 10, 1987.

Manuel Alvarado with whom Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera Cruz, Secretary of Justice, and Rafael Ortiz Carrion, Sol. Gen., were on brief for defendant, appellant in No. 86-1267.

Jose Hamid Rivera with whom Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera Cruz, Secretary of Justice, and Rafael Ortiz Carrion, Sol. Gen., were on briefs for defendants, appellants in Nos. 86-1555 and 86-1631.

Pedro Miranda Corrada, San Jose, P.R., with whom Hector Urgell Cuebas, Santurce, P.R., and Jose Roberto Feijoo were on brief for plaintiff, appellee in No. 86-1267.

Hector Gonzalez Lopez, San Juan, P.R., with whom Hector Urgell Cuebas, Santurce, P.R., Pedro Miranda Corrada, San Juan, P.R., and Jose Roberto Feijoo were on brief for plaintiff, appellee in No. 86-1555.

Hector Urgell Cuebas, Santurce, P.R., with whom Pedro Miranda Corrada, San Juan, P.R., and Jose Roberto Feijoo were on brief for plaintiff, appellee in No. 86-1631.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiffs-appellees, Puerto Rico government employees who were discharged or demoted following the 1984 gubernatorial election, commenced separate actions under 42 U.S.C. Sec. 1983 seeking damages and reinstatement. All three appellees claim that they were dismissed because of their affiliation with the Partido Nuevo Progresista ("PNP"), the party that ruled Puerto Rico from 1977 to 1985, but was defeated by the Partido Popular Democratico ("PPD") in the last election. Defendants-appellants, Puerto Rico public officials, sought partial summary judgment on the basis of their qualified immunity from actions seeking damages. Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3020 n. 12, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The courts below denied defendants' motions for summary judgment and these appeals ensued. We have jurisdiction to consider on interlocutory appeal the narrow question of whether the denials of summary judgment based on defendants' claims of qualified immunity were proper. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir.1986). We vacate the orders and remand the cases for the entry of partial summary judgment on the basis of qualified immunity in favor of all three appellants.

I. Factual Setting

This opinion disposes of three appeals that were briefed and argued separately before this panel. The cases all involve the same legal principles and arguments, although each involves a different position in the hierarchy of the Puerto Rico government.

In No. 86-1267, plaintiff-appellee Juan A. Mendez-Palou claims that, due to his affiliation with the PNP, he was discharged from his position as Director of Administration for the Puerto Rico Environmental Quality Board ("EQB") by defendant-appellant Santos Rohena-Betancourt, current President of the EQB.

Similarly, in No. 86-1555, plaintiff-appellee Jose M. Rodriguez Ramirez contends that, because of his political affiliation, he was demoted from his position as Assistant Secretary for Special Services in the Puerto Rico Department of Agriculture ("DOA") and reinstalled in his last career position by defendant-appellant Antonio Gonzalez-Chapel, former Secretary of Agriculture. ¹

Finally, in No. 86-1631, plaintiff-appellee Rafael Gimenez Boehm alleges that, due to his support for the PNP, he was dismissed from his position as Deputy Executive Director for Special Affairs in the Puerto Rico Aqueduct and Sewers Authority ("ASA") by defendant-appellant Jose L. Riefkohl, former Acting Director of the ASA. ²

II. First Amendment Doctrine.

We first review the substantive law relevant to dismissals motivated by partisan political concerns. Although patronage dismissals never used to be regarded as violating the federal Constitution, the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), "marked a substantial change in the law." De Abadia v. Izquierdo Mora, 792 F.2d at 1191. Elrod held for the first time that public employees who allege that they were discharged due to their political affiliation state a claim for violation of their first and fourteenth amendment rights. 427 U.S. at 373, 96 S.Ct. at 2689. After Elrod, therefore, the vast majority of public employees enjoy constitutional protection from politically motivated dismissal. The Supreme Court, however, did not extend this protection to all public employees, noting that the first amendment must yield to the vital interest of preserving representative government whenever elected officials choose to replace underlings employed in "policymaking" or "confidential" positions. See Elrod, 427 U.S. at 367, 96 S.Ct. at 2687; id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring).

The Branti court, after demonstrating that the "policymaking" and "confidential" labels employed in Elrod were both overinclusive and under inclusive, opted instead for a totality of the circumstances test. Although consistent with Elrod, Branti held that "the ultimate inquiry ... is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1295. Since the Supreme Court's pronouncement in Branti, several courts, including our own, have begun to employ the new test to demarcate the boundary of first amendment protection from politically motivated discharge. See Jimenez Fuentes v. Torres Gaztambide, 803 F.2d 1, 5-6 (1st Cir.1986) (en banc) (collecting cases).

In Jimenez Fuentes we attempted to fashion a workable approach to deciding when a particular position is excepted from first amendment protection, setting out a two-part analysis for cases involving alleged patronage dismissals. Jimenez Fuentes, 803 F.2d at 5. We first ask, as a threshold inquiry, "whether the position at issue, no matter how policy-influencing or confidential it may be, relates to 'partisan political interests.... [or] concerns.' " Id. at 6 (quoting Branti, 445 U.S. at 519, 100 S.Ct. at 1295). In making this determination we generally find it helpful to consider whether the agency employing the plaintiff handled matters potentially subject to partisan political differences and to focus upon how the plaintiff's position influenced the resolution of such matters. This step is designed to cut off from further consideration those positions involving matters devoid of partisan concerns, such as the " 'proper flow of work' in an agency," see De Choudens v. Government Development Bank of Puerto Rico, 801 F.2d 5, 10 (1st Cir.1986) (en banc), or the preferred accounting method or computer system.

Regardless of the position of an employee within the government hierarchy, or the broad scope of his or her duties, if the employee is responsible only for duties that are measured solely by strictly technical or professional criteria, the job is nonpartisan in nature and not properly a target of patronage dismissal. Although government employees may have differing views concerning an important technical or operational matter--for instance, the proper method of accounting to be employed or the preferred plan for computerizing an agency--such a disagreement does not itself involve an issue implicating partisan political differences and is not the sort of "policy" dispute recognized as relevant by Elrod and Branti. We further note that, for a position to pass the first threshold, there need not exist presently a political disagreement over the proper role of government in the particular area of governance at issue. The position at issue need only involve "decisionmaking on issues where there is room for political disagreement on goals or their implementation." Jimenez Fuentes, 803 F.2d at 6 (emphasis supplied).

If the first inquiry is satisfied, we then examine the plaintiff's job responsibilities in some detail "to determine whether [the position involved] resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement." Jimenez Fuentes, 803 F.2d at 6. In conducting this second inquiry we focus upon the "powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office." Id. In this regard, the actual past duties of the discharged employee are irrelevant if the position inherently encompasses more expansive powers and more important functions that would tend to make political affiliation an appropriate requirement for effective performance. Id.

Despite this recent attempt to clarify the contours of the Elrod-Branti doctrine, the posture of the instant cases precludes us from relying solely on our opinion in Jimenez Fuentes. The only question before us in these cases is whether the appellants were immune from a section 1983 action for damages and thus entitled to partial summary judgment. This question requires only that we assess the law as it existed at the time of the plaintiffs' discharges, thus rendering the Jimenez Fuentes decision outside the scope of our review.

Jimenez Fuentes is relevant in one significant respect, however. In that case, we pulled together the "considerable body of case...