Perez-Serrano v. DeLeon-Velez

• Decision Date: 01 November 1988
• Docket Number: LEON-VELEZ,PEREZ-SERRANO
• Citation: 868 F.2d 30
• Parties: Jeannette, et al., Plaintiffs, Appellees, v. Juan R. De, etc., et al., Defendants, Appellants. Appeal of The MUNICIPAL GOVERNMENT OF FLORIDA, Defendant, Appellant. Jeannette, et al., Plaintiffs, Appellees, v. Juan R. De, etc., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 30

868 F.2d 30

57 USLW 2510

Jeannette PEREZ-SERRANO, et al., Plaintiffs, Appellees, v. Juan R. DeLEON-VELEZ, etc., et al., Defendants, Appellants.

Appeal of The MUNICIPAL GOVERNMENT OF FLORIDA, Defendant, Appellant.

Jeannette PEREZ-SERRANO, et al., Plaintiffs, Appellees, v. Juan R. DeLEON-VELEZ, etc., et al., Defendants, Appellants.

United States Court of Appeals, First Circuit.

Heard Nov. 1, 1988.

Decided Feb. 22, 1989.

As Amended Feb. 23, 1989.

Luis N. Blanco Matos with whom Rafael Ortiz Carrion, Sol. Gen., Norma Cotti Cruz, Deputy Sol. Gen., Vannessa Ramirez, Asst. Sol. Gen., Dept. of Justice, San Juan, P.R., and Angel L. Tapia Flores, Rio Piedras, P.R., were on joint brief, for defendants, appellants.

Miguel Pagan, San Juan, P.R., with whom Eliezer Aldarondo Ortiz and Aldarondo & Lopez Bras, Hato Rey, P.R., were on brief, for plaintiffs, appellees.

Before CAMPBELL, Chief Judge, WISDOM, ^* Senior Circuit Judge, and COFFIN, Circuit Judge.

COFFIN, Circuit Judge.

The major issue in this appeal is whether in a Sec. 1983 action seeking damages and injunctive relief, issues common to both claims must first be submitted to the jury. In this case, the district court denied defendants' request for a jury trial and itself resolved the common issue of liability, leaving for the jury only the task of assessing damages. We believe this was error and now reverse.

The case was initiated by eighteen employees of the Municipality of Florida in Puerto Rico, who sued both the Mayor and the Municipality for terminating their service. The plaintiffs, members of the New Progressive Party (NPP), allege that they were discharged by defendants because of their political affiliation, the Mayor being a member of the Popular Democratic Party (PDP), which had recently come to power in early 1985. The complaint sought declaratory relief, reinstatement, back pay, compensatory and punitive damages and a permanent injunction as well as costs and attorney's fees. It cited substantive and procedural due process rights under the first, fifth and fourteenth amendments and a number of personnel statutes of the Commonwealth of Puerto Rico. No prayer for preliminary injunctive relief was included in the complaint or, as far as we can ascertain, ever added by amendment.

The complaint was served on defendants on June 17, 1986, some 60 days after having been filed in court. On June 18, the district court issued a show cause order setting a hearing date of August 12, 1986, outlining requirements for the exchanging of documentary evidence, marking exhibits and preparing a pretrial order and briefing, etc. The order also announced that the hearing of August 12 would be "a consolidated hearing for a preliminary and permanent injunction."

Subsequently, on July 15, the defendant Mayor made a demand for jury trial and on July 22 the Municipality made a similar demand. On August 5, both defendants unsuccessfully moved to suspend the order setting the hearing date, pointing out that a preliminary injunction had not been requested, that the prerequisites to issuance of a preliminary injunction did not exist, and that any hearing on a permanent injunction would be premature.

On August 6, a pretrial order, signed by all parties, was filed. Annex I to this order consists of two documents, 144 pages of prospective jury instructions and 5 pages of voir dire questions. The defendants noted that they were signing the pretrial order without withdrawing their previous objections.

On August 12, the minutes of a meeting with the district court reported that the Municipality's request for a jury trial had been denied on the ground that there was no jury trial right in a case seeking equitable relief. There was apparently no separate action taken on the Mayor's request for a jury trial. A fifteen-day nonjury trial ensued. On July 20, 1987, the district court filed its opinion and order holding that plaintiffs had met their burden under the first amendment of showing that their political affiliation was a material factor in the decision to remove them from their positions and that defendants failed to carry their burden of showing that they would have reached the same decision regardless of plaintiffs' political affiliation. It ordered the defendants to reinstate all plaintiffs to their previous positions with the exception of one plaintiff who had already been rehired and another, Fernandez, who was to be reinstated to a different position comparable with her seniority and education. It also awarded plaintiffs back pay. The court's order concluded with a statement that "A jury shall be called to determine the issue of damages."

The appellees first argue that the appellants have waived any right to a jury trial. They cite no authority, however, except cases where no timely demand was made for a jury trial. In this case, not only was timely demand made, prior to responsive pleading, by both defendants, but the annexing to the pretrial order of the massive collections of materials relating to jury instructions and voir dire questions evidenced appellants' continuing interest in a jury trial. Although appellants, as they recognize, could have sought an early decision of the jury trial issue by a writ of mandamus, the right is not forfeited by failure to pursue this extraordinary route. As Professors Wright and Miller state in 9 Federal Practice and Procedure Sec. 2322, p. 105 (1971):

Even though it is possible to get immediate review of a denial of jury trial by the devices just mentioned [mandamus or by treating the denial of jury trial as an appealable injunction], the party who wishes a jury is not required to proceed in this fashion and may have review of the denial of a jury on an appeal from the final judgment.

Having concluded that defendants did not waive their right to a jury trial, we turn to the central question in the case: must a jury determine all common issues in a Sec. 1983 action seeking both damages and injunctive relief?

The long established rule in this area is set forth clearly in Dairy Queen v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962):

The holding in Beacon Theatres [v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 957, 3 L.Ed.2d 988] was that where both legal and equitable issues are presented in a single case, "only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims." That holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as "incidental" to equitable issues or not. Consequently, in a case such as this where there cannot even be a contention of such "imperative circumstances," Beacon Theatres requires that any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury.

(citations omitted).

The question then is whether a claim seeking damages under Sec. 1983 is characterized properly as "legal" for purposes of the seventh amendment. A recent decision of this circuit, Santiago-Negron v. Castro-Davila, 865 F.2d 431 (1st Cir.1989) has we believe...