Nunez v. Izquierdo-Mora, IZQUIERDO-MORA

• Decision Date: 30 November 1987
• Docket Number: IZQUIERDO-MORA,No. 87-1132,87-1132
• Citation: 834 F.2d 19
• Parties: Ernesto NUNEZ, et al., Plaintiffs, Appellees, v. Luiz, etc., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 19

834 F.2d 19

Ernesto NUNEZ, et al., Plaintiffs, Appellees, v. Luiz IZQUIERDO-MORA, etc., et al., Defendants, Appellants.

No. 87-1132.

United States Court of Appeals, First Circuit.

Submitted Sept. 18, 1987.

Decided Nov. 30, 1987.

Jose Luis Gonzalez Castaner, Marcos A. Ramirez Irizarry, Ramirez & Ramirez, and Hector Rivera Cruz, Secretary of Justice, Hato Rey, P.R., on brief, for appellants.

Miguel Gimenez-Munoz, on brief, for appellees.

Before BOWNES, BREYER and SELYA, Circuit Judges.

PER CURIAM.

Following the 1984 gubernatorial election, defendants-appellants dismissed plaintiffs-appellees from their positions in the Department of Health and the Health Facilities and Services Administration ("H.F.S.A."), an agency servicing the Department of Health. Plaintiffs filed the instant action claiming that they were dismissed because of their political affiliation. They sought declaratory and injunctive relief, back pay and damages pursuant to state and federal law, particularly 42 U.S.C. Sec. 1983. Defendants moved for partial summary judgment on the basis of their qualified immunity from section 1983 damages actions. ¹ The court below denied their motion and this appeal followed. This court has jurisdiction to consider on interlocutory appeal the question whether the denial of summary judgment on qualified immunity grounds was proper. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411 (1985); Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1256 (1st Cir.1987).

I. QUALIFIED IMMUNITY ANALYSIS

The doctrine of qualified immunity protects a public official from suit in a section 1983 damages action if, at the time of the challenged conduct, the right the defendant allegedly violated was not "clearly established." Mendez-Palou, 813 F.2d at 1259. The test focuses on the "objective legal reasonableness" of the action. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). To be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

In the context of discharges based on political affiliation, 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), form the basis of the right plaintiffs allege was violated in this case. Read together, these cases provide that public employees may not be discharged due to their political affiliations under the first and fourteenth amendments, unless "the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Elrod, 427 U.S. at 373, 96 S.Ct. at 2689-90; Branti, 445 U.S. at 518, 100 S.Ct. at 1295. As we stated in Mendez-Palou, the relevant inquiry in disposing of qualified immunity questions in the area of public discharges is "whether it was clearly established that employees in the particular positions at issue, in light of the responsibilities inherent in those positions, were protected from patronage dismissal." 813 F.2d at 1259 (emphasis in original); Juarbe-Angueira v. Arias, 831 F.2d 11, 13 (1st Cir.1987). We concluded generally that "there was no clearly established constitutional protection against patronage dismissal [in 1985] for those individuals whose positions potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication." Mendez-Palou, 813 F.2d at 1259 (emphasis added); Quintana v. Anselmi, 817 F.2d 891, 892 (1st Cir.1987); Juarbe-Angueira, at 14. As we recently have emphasized, "defendants will normally enjoy qualified immunity from damage liability in upper level, managerial-type job dismissal cases, cases where the jobs in question are not purely technical or scientific in nature." Juarbe-Angueira, at 14 (emphasis added).

In determining whether defendants are entitled to qualified immunity, we may look beyond the allegations in plaintiffs' complaints if they are insufficient for us to answer the immunity question. Mendez-Palou, 813 F.2d at 1260. We may, in this situation, examine undisputed record material not contained in the complaints. Id.; see also Quintana, 817 F.2d at 892. Specifically, we are to rely on undisputed job classification questionnaires, whenever possible, for a description of the "inherent powers and responsibilities" of the positions at issue. Mendez-Palou, 813 F.2d at 1260. ²

II. PLAINTIFFS' POSITIONS

Before addressing each of plaintiffs' positions, we first point out that there is no doubt that the agencies where plaintiffs were employed are charged with a politically sensitive mission. The Department of Health handles all matters "related to public health, sanitation and welfare...." P.R. Laws Ann. tit. 3, Sec. 171. The H.F.S.A. is attached to the Department of Health and was created to "administer and operate the facilities for health protection and care...." Id. tit. 24, Secs. 337, 337c(a). Clearly, issues concerning public health and the provision of health care services to the residents of Puerto Rico "potentially involve partisan political disagreement concerning policy goals and implementation." Mendez-Palou, 813 F.2d at 1260.

A. Ernesto Nunez: Auxiliary Director of Fiscal Resources of

the H.F.S.A.

Nunez was dismissed from his position as Auxiliary Director of Fiscal Resources of the H.F.S.A. This is classified as a "trust or confidence" position by the Puerto Rico Public Service Personnel Act. P.R. Laws Ann. tit. 3, Sec. 1350. The classification questionnaire describes the duties of this position:

1. Insure that the fiscal and accounting systems and procedures which facilitate the implementation of the established fiscal policies and norms be designed, implemented and maintained up-to-date.

2. Follow-up and evaluate the operation of the fiscal systems of the Administration to insure that it is acting within the parameters of the established policy in this respect and that the established norms are being followed.

3. Develop the internal fiscal policy and norms of the Administration.

4. Develop the fiscal mechanisms needed to maximize the income of the Administration and that this income be used in an adequate manner pursuant to the prevailing needs.

5. Be responsible for the preservation of the assets of the Administration.

6. Be responsible for analyzing the fiscal affairs of the Administration and to submit systematically to its Executive Director its recommendations in such a manner that the financial soundness of said Administration be insured.

7. Advise the Executive Director and the Secretary of Health on those financial matters which foster the growth and solidity of the Administration.

Although this position involves some technical work such as maintaining the accounting systems of the H.F.S.A., we do not agree with Nunez that his duties concerned only the professional provision of bookkeeping services. Nunez argues that the Auxiliary Director's position is similar to that of the vice president of the Finance Area for the Puerto Rico Government Development Bank in De Choudens v. The Government Development Bank, 801 F.2d 5 (1st Cir.1986) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). There we found that the district court judge had not abused his discretion in holding that the position at issue, even though it involved policy contributions concerning the oversight of the accounting services and budget recommendations concerning the bank, was politically neutral.

De Choudens is distinguishable. First, the Auxiliary Director's position involves the development of the "internal fiscal policy and norms" of the H.F.S.A. The person in this position also is in charge of maximizing the income of the agency and in determining how to use that income. Finally, the Auxiliary Director analyzes the fiscal affairs of the agency and advises and makes recommendations to the Executive Director concerning the future growth of the H.F.S.A.

There is no doubt that, under the standard applicable to this type of case, this position involves the Auxiliary Director in areas that at least potentially concern matters of partisan interest. How an agency's income is spent and how fiscal policy is analyzed with a view to determining the future growth of the agency seems to us to be of political interest. One in this position has more than the required "modicum" of policymaking responsibility. See Rosado v. Zayas, 813 F.2d 1263, 1266 (1st Cir.1987) (position of Director of Bureau of Statistics for the Economic and Social Planning Program of Planning Board concerns partisan political matters where, although "the tools of the ... job are numbers, the substance of his work involves analysis and planning in the politically charged areas of economic and social development"). Thus, it was not clearly established that the Auxiliary Director was entitled to protection from political discharge. Id.

B. Icelia Medina Medina: Special Assistant III to the Secretary of Health

Medina, who was dismissed from her position as Special Assistant III to the Secretary of Health, signed the OP-16 which describes the duties of her position. Such position is classified as a trust or confidence position by the Puerto Rico Public Service Personnel Act.

We need not enumerate the specific duties listed in the OP-16. It is clear from a brief summary of them that Medina occupied a position that involved politically sensitive public relations work. A Special Assistant III represents the Secretary of Health at meetings and other official activities. He or she analyzes requests for meetings and interviews with the Secretary and drafts documents for the Secretary's signature, as well as...