Morales-Narvaez v. Rossello

• Decision Date: 16 May 1994
• Docket Number: Civ. No. 93-1960 GG.
• Citation: 852 F. Supp. 104
• Parties: Arnaldo MORALES-NARVÁEZ, et al., Plaintiffs, v. Hon. Pedro J. ROSSELLO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

852 F. Supp. 104

Arnaldo MORALES-NARVÁEZ, et al., Plaintiffs, v. Hon. Pedro J. ROSSELLO, et al., Defendants.

Civ. No. 93-1960 GG.

United States District Court, D. Puerto Rico.

May 16, 1994.

COPYRIGHT MATERIAL OMITTED

Saldaña, Rey & Alvarado, Manuel Alvarado, Santurce, PR, for plaintiffs.

Ana L. Torres, Aida Medina, Reinaldo Babilonia, San Juan, PR, for defendant Puerto Rico Com. Ass'n.

Dominguez & Totti, Jorge C. Pizarro, San Juan, PR, for defendant Pedro J. Rossello.

Pedro R. Pierluisi, Atty. Gen., Mayra Maldonado Colon, Acting Director, Federal Litigation Div., Dept. of Justice, San Juan, PR, for defendants Alvaro Cifuentes, Henry F. Gonzalez, Michael Forte.

OPINION AND ORDER

GIERBOLINI, Senior District Judge.

I. Introduction and Facts

Plaintiffs have filed an action under 42 U.S.C. §§ 1983, 1985(3), and 1986 against the Honorable Pedro J. Rossello, Governor of the Commonwealth of Puerto Rico, Alvaro Cifuentes, Secretary of the Governorship, Henry F. González, Special Aide to the Governor in Charge of Administration, and Michael Forte, Personnel Director of the Office of the Governor, in both their official and individual capacities, alleging that defendants conspired to violate their constitutional rights under the Due Process Clause of the Fifth and Fourteenth Amendments and their right to free association under the First Amendment. Specifically, the plaintiffs allege that they were transferred from their former positions to their current positions based only on their political affiliation. Plaintiffs are members of the Popular Democratic Party (PDP). The Governor, on the other hand, is a member of the New Progressive Party (NPP). Plaintiffs request compensatory and punitive damages, and reinstatement to their former positions in the Contracts Office in the Governor's Office. Presently under consideration in this Opinion and Order is plaintiffs' motion for a preliminary injunction seeking reinstatement to their former positions and an order prohibiting the removal of plaintiff Arnaldo Morales-Narváez as a delegate to the Puerto Rico Commonwealth Employees Association and as a member of the Board of Directors of that Association.

From the record we find the following facts. All of the plaintiffs worked in the Contracts Office in the Governor's Executive Mansion. The transfers the plaintiffs challenge occurred after the Hon. Pedro Rossello won the election for Governor in November 1992. Soon after taking office, the Governor issued Administrative Bulletin/Executive Order 1993-04, which established a public policy of austerity. In a Memorandum of February 4, 1993, the Governor granted Attorney Alvaro Cifuentes, Secretary of the Governorship, the discretion to reject any governmental contract for professional or consultant services of any public agency after evaluation of the contract "in order to execute the policy of austerity promulgated." Before Executive Order 1993-04 was signed, the Contracts Office only handled maintenance, gardening, supply, entertainment, and other similar contracts entered into by the Executive Mansion. The Executive Order assigned to the Contracts Office the new duties of evaluating and approving all professional and consultant service contracts of all government agencies of the Commonwealth of Puerto Rico.

Plaintiff Arnaldo Morales-Narváez worked under the Secretary of the Governorship as a contract analyst. The other plaintiffs were secretaries in the Contracts Office. The parties disagree as to the classification of the plaintiff's positions under the Puerto Rico classification system. The defendants claim that all of the plaintiffs held confidential posts, while the plaintiffs claim that they all held career positions. Neither party has provided any evidence concerning the civil service classification of their former positions. For purposes of this Opinion and Order, we will assume that co-plaintiffs Morales-Narváez and Rosa I. Ortega-Torres were career employees at the time of the transfers. The third plaintiff, Isabel Martinez-Camacho, was a confidential employee, who had formerly been a career employee. See Pls.' Reply to Opp'ns to the Prelim. Inj., pp. 9-11.

Ostensibly based on the needs of the governmental programs involved, all of the plaintiffs were transferred from the Contracts Office to the Consejo para el Mejoramiento de la Calidad de Vida en Areas Urbanas y sus Recursos Entretegidos con Dedicacion (Council for the Improvement of Urban Life) (hereinafter "RED"), another office in the Executive Mansion on March 31, 1993. RED was itself transferred to the Housing Department pursuant to Executive Order BA-OE # 1993-11, signed on March 8, 1993, which provides that transferred personnel would maintain the same rights and benefits which they had at the time of the transfer.

II. Preliminary Injunction Standard

In deciding a motion for a preliminary injunction, the standard is a familiar one. The court will weigh the following factors:

1) the probability that plaintiffs will succeed on the merits;

2) the possibility that the movant will experience an irreparable injury if the injunction is not granted;

3) whether the potential injury to the plaintiffs outweighs any potential injury to defendants; and

4) whether the public interest will be adversely affected by granting the injunction.

Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). Of these factors, the First Circuit has emphasized the paramount importance of the plaintiffs' likelihood of success on the merits. Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.1993). In this action, we have not conducted a hearing because the parties have had a fair opportunity to present relevant facts and arguments to the court. See Aoude v. Mobil Oil Corp., 862 F.2d 890, 893-94 (1st Cir.1988). After reviewing the factors listed above, we deny plaintiffs' motion for a preliminary injunction.

After reviewing the facts as alleged by the plaintiffs and the briefs submitted by both parties, we deny plaintiffs' motion for a preliminary injunction, finding that 1) plaintiffs have not shown a likelihood of success on the merits on any of their claims; 2) plaintiffs have not shown irreparable injury from a denial of a preliminary injunction; and 3) the harm caused the plaintiffs from denying a preliminary injunction does not outweigh the potential harm caused to the government. We explain our decision below.

III. Likelihood of Success on the Merits

A. The First Amendment Claim

1. The Law

a. Employment Discrimination on the Basis of Political Affiliation — Political Affiliation as an Appropriate Job Requirement

The First Amendment forbids government officials from discharging, promoting, transferring, recalling, or hiring public employees solely for not being supporters of the political party in power, unless party affiliation is an appropriate requirement for the position involved. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Therefore, the threshold question in this case is whether party affiliation is an appropriate requirement for the plaintiffs' Contract Analyst and secretarial positions.

In answering this question, we will look at the positions as newly reconstituted after the Governor instituted his austerity program. The First Circuit has set out a two step test to determine whether party affiliation is an appropriate job requirement. We will consider 1) whether the agency employing the plaintiffs handled matters potentially subject to partisan political differences and 2) how the plaintiff's position influenced the resolution of such matters. See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987) and Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1257-58 (1st Cir.1987). To answer the second question we will "examine the particular responsibilities of the position to determine whether the employee in the position 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, 807 F.2d at 242; see also Mendez-Palou, 813 F.2d at 1258; Serrano Caraballo v. Roman Hernandez, 744 F.Supp. 389, 392 (D.Puerto Rico 1990).

We must also take into account that the First Circuit has found a "confidential employee" exception to the Elrod-Branti protection against politically motivated discharges. Specifically, there may be "public employees who occupy positions of such unusually intimate propinquity relative to government leaders that, despite their noninvolvement with partisanship and policymaking, political loyalty could be deemed an appropriate requirement of the job for purposes of muzzling the Elrod-Branti watch-dog." Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324 (1st Cir.1987); see also Santiago Correa v. Hernandez Colon, 835 F.2d 395, 397 (1st Cir.1987). Of particular importance is the question whether the employees' positions intrinsically allow them ready access to sensitive political information and place them in a confidential position in relation to policymakers or the policymaking process. Vazquez Rios, 819 F.2d at 324. If party affiliation is an appropriate requirement for the job, persons holding those jobs have no constitutional protection from patronage dismissals, hiring, transfers, or other employment decisions under Rutan, Elrod, or Branti.

b. Agosto-de-Feliciano Standard and Defenses

We will also address the various burdens and defenses plaintiffs must contend with under Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209 (1st Cir.1989). Plaintiffs must meet the severity of...