Ortiz-Resto v. Rivera-Schatz

• Decision Date: 22 June 2021
• Docket Number: CIVIL ACTION NO. 17-02362-WGY
• Parties: JULIO ORTIZ-RESTO ET AL. Plaintiffs, v. THOMAS RIVERA-SCHATZ, GABRIEL HERNANDEZ, ROBERTO MALDONADO-VELEZ ET AL., Defendants.
• Court: U.S. District Court — District of Puerto Rico

JULIO ORTIZ-RESTO ET AL. Plaintiffs,
v.
THOMAS RIVERA-SCHATZ, GABRIEL HERNANDEZ, ROBERTO MALDONADO-VELEZ ET AL., Defendants.

CIVIL ACTION NO. 17-02362-WGY

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

June 22, 2021

YOUNG, D.J.¹

MEMORANDUM OF DECISION

I. INTRODUCTION

On March 9, 2021, defendants Thomas Rivera-Schatz, Gabriel Hernandez, and Roberto Maldonado-Velez (collectively, "the Defendants") noticed an interlocutory appeal of this Court's February 8, 2021, partial denial of summary judgment, Order (Feb. 8, 2021) ("Order 1"), ECF No. 133, without identifying the issue that would permit such an extraordinary appeal, Notice of Appeal, ECF No. 137. On May 10, 2021, the Defendants clarified with the First Circuit Court of Appeals that the basis of their interlocutory appeal is the Court's denial of qualified immunity as to three plaintiffs: Elizabeth Colón-Rodriguez ("Colón-

Page 2

Rodríguez"), Pierre Vega-Alameda ("Vega-Alameda"), and Horidel Pons-Anaya ("Pons-Anaya").² "[W]here, as here, a denial of summary judgment implicates a claim of qualified immunity, the dividing line between appealable and nonappealable denials of summary judgment is blurred." Norton v. Rodrigues, 955 F.3d 176, 184 (1st Cir. 2020) (quoting Morse v. Cloutier, 869 F.3d 16, 22 (1st Cir. 2017) (quotations and citations omitted)). As the First Circuit teaches, "the crucial distinction between appealable and non-appealable summary judgment orders denying qualified immunity is this: purely legal rulings implicating qualified immunity are normally reviewable on an interlocutory appeal, but rulings turning on either an issue of fact or an issue perceived by the trial court to be an issue of fact are not." Id. (brackets, citation, and quotations omitted). As discussed below, there are questions of fact -- or perceived questions of fact -- that preclude judgment as matter of law on the issue of qualified immunity as to these plaintiffs at this stage of the litigation.

Page 3

II. BACKGROUND

A. The Costly Perpetual War Between the Puerto Rico Political Parties

The disheartening history of political retribution between the major political parties in Puerto Rico is well known to the First Circuit:

Puerto Rico has two major political parties that dominate the electoral landscape: the Popular Democratic Party (PDP) and the New Progressive Party (NPP). Control of the government periodically switches between the two parties. Entirely too often, the political party assuming office terminates the employment of public employees who are affiliated with the party going out of power and then fills those vacancies with its own members. By the same token, the outgoing party attempts to secure the continued tenure of its members in public jobs through a variety of devices, such as reclassifying policy-type appointments as career positions or making appointments in violation of Puerto Rico law. . . . [A]dministrations in Puerto Rico have continued to take employment actions against public employees because of their political affiliations. With each change in administration -- at both the commonwealth and municipal levels -- the federal district courts in Puerto Rico are flooded with hundreds of political discrimination cases, many of which are appealed.

Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 125-26 (1st Cir. 2004). What is unique to this landscape is that public officials are keenly aware of and follow the decisions of this district and the First Circuit. As the late Judge Torruella pointed out:

This circuit leads the nation as one of the most prolific generators of political discrimination cases;

Page 4

in this area of litigation, the District of Puerto Rico has the dubious distinction of being the most fecund district in the circuit. See Morales-Santiago v. Hernández-Pérez, 488 F.3d 465, 466 (1st Cir. 2007) ("[I]n Puerto Rico, a change between the Popular Democratic Party (PDP) and the New Progressive Party (NPP) [gives rise to] overly zealous political operatives of the prevailing party terminat[ing], demot[ing], or reduc[ing] the salaries of employees affiliated with the outgoing opposition party."). As a result of the proliferation of these cases and their public notoriety, the legal precepts established by them are widely known in Puerto Rico, particularly by those in public administration.

López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 29 (1st Cir. 2008) (Torruella, J., concurring in part and dissenting in part) (emphasis added). Student commentators have recently observed the breathtaking scope of the problem:

[A]fter the end of the PDP's dominance in the 1968 elections, every election cycle has brought with it a string of politically motivated dismissals both at the state and local level. Public servants in Puerto Rico are thus subject to the ever-changing winds of electoral politics, undermining the principle of merit, and destabilizing the public administration of the Commonwealth. The economic effect wrought by this nefarious tradition is staggering. Both the Court of Appeals for the First Circuit and Supreme Court of Puerto Rico have felt the need to remark on the costs brought on by politically discriminatory dismissals. In a 1993 study, the Puerto Rico Civil Rights Commission estimated the total cost of political discrimination lawsuits over a five year period to be over 100 million dollars. Another study identified four municipalities that had to take out loans with the Government Development Bank for Puerto Rico and the Treasury Department to be able to pay outstanding claims. Municipalities alone paid more than thirty-nine million dollars in settlements and jury awards between 2000 and 2008, and this does not take into account litigation costs like legal fees, or employer contributions to the state retirement system that must

Page 5

be paid if the employee is reinstated. As the introductory quotation to this article suggests, however, the most severely hit may be the dismissed employees. As of April, 2016, public sector employment as a share of total employment equaled 25.7 6%, and, as such, the government is the largest single employer in the island. In an economy where less than 40% of the working age population is employed and which suffers from an 11.9% unemployment rate, losing a government job can be a devastating blow for which there is no readily available replacement.

The scale of this problem is made evident in the federal court system where, in comparative terms, the number of political discrimination cases hailing from the District Court for the District of Puerto Rico far outnumbers political discrimination cases from other federal districts. A tangential effect of the disproportionate representation of Puerto Rico in these cases has been the influence the First Circuit has exerted over other circuits in the development of public employment political discrimination jurisprudence.

Alexandra Sabater Baerga & Jean R. Santiago Cruz, A Spoiled Spoils System: Puerto Rico's Epidemic of Political Discrimination and the Federal Courts, 85 Rev. Jur. U.P.R. 1327, 1328-30 (2016) (footnotes omitted). According to these commentators, from 1970 to 2015, the District of Puerto Rico entertained 276 political discrimination cases. Id. at 1347-48. They conclude:

The numbers speak for themselves. It is evident that political discrimination is a pervasive problem at all levels of government in Puerto Rico and drains government resources both directly through awards and indirectly through litigation. The standard is not to blame. These cases are fact intensive and require sufficient pleadings to establish causation between knowledge and action.

Page 6

Id. at 1352; see Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 75 (1st Cir. 2006) ("Discrimination based on political-party affiliation is rampant in government employment in Puerto Rico. . . . It has cost Puerto Rican taxpayers dearly in verdicts paid from public funds.").

B. The First Circuit's Prohibition of Incoming Administrations' Use of Pretextual Systemic Reorganizations to Effectuate Otherwise Impermissible Terminations and the Civil Actions before this Court

It is well settled in the First Circuit that "an incoming administration may not use a systematic reorganization to effectuate otherwise impermissible terminations." Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 8 (1st Cir. 2015) (quoting Rodríguez-Sanchez v. Mun. of Santa Isabel, 658 F.3d 125, 130-31 (1st Cir. 2011) (quotations omitted)). Three cases before this Court, including this one, arise out of alleged politically motivated firings after the change in administration from PDP to NPP in the November 2016 Puerto Rico elections.³ The plaintiffs' central theory of these cases, supported at least by disputed circumstantial evidence, is that soon after taking power, the Defendants (who in this case are high-ranking Puerto Rico Senate officials), engaged in pretextual and systematic

Page 7

firings -- purportedly triggered by fiscal emergencies -- to effectuate otherwise impermissible terminations. None of the Defendants moved for summary judgment on qualified immunity on this central issue. Nor could they, inasmuch as Ocasio-Hernández confirms that such pretextual deck-clearings, as alleged here, are unlawful. Id. Rather, the Defendants in this action only moved in the alternative for qualified immunity as to four plaintiffs on the grounds that these plaintiffs were not protected from political patronage firings. This Court agreed that qualified immunity was appropriate as to Kuidland but denied qualified immunity as to plaintiffs Colón-Rodríguez, Vega-Alameda, and Pons-Anaya. See Order 1.

III. ANALYSIS

A. Summary Judgment and Qualified Immunity

The First Circuit has recently discussed the complexity of deciding qualified immunity at the summary judgment stage:

We are . . . mindful that deciding qualified immunity at the summary-judgment stage can be tricky. See Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009) (discussing

...