Rodriguez-Burgos v. Electric Energy Authority, RODRIGUEZ-BURGO

• Decision Date: 08 June 1988
• Docket Number: No. 87-2059,P,RODRIGUEZ-BURGO,87-2059
• Citation: 853 F.2d 31
• Parties: Victor R.laintiff, Appellant, v. ELECTRIC ENERGY AUTHORITY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 31

853 F.2d 31

Victor R. RODRIGUEZ-BURGOS, Plaintiff, Appellant, v. ELECTRIC ENERGY AUTHORITY, et al., Defendants, Appellees.

No. 87-2059.

United States Court of Appeals First Circuit.

Heard June 8, 1988.

Decided Aug. 3, 1988.

Pedro Miranda Corrada, San Juan, P.R., with whom Hector Urgell Cuebas, Santurce, P.R., was on brief, for plaintiff, appellant.

Alice Net Carlo with whom Law Offices of Garcia Rodon, Correa Marquez & Valderas, Hato Rey, P.R., were on brief, for defendants, appellees.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

The plaintiff, Victor R. Rodriguez-Burgos ("Rodriguez-Burgos" or "the plaintiff"), brought an action pursuant to 42 U.S.C. Sec. 1983 and Puerto Rican law against defendants, Puerto Rico Electric Power Authority ("PREPA" or "Authority") and certain PREPA officials. He claimed that the defendants violated his rights under the First and Fourteenth Amendments and Articles I and II of the Puerto Rico Constitution by removing him from an executive position at the Authority and placing him in a lower level managerial position. Rodriguez-Burgos sought reinstatement to his former position, damages, and backpay. The defendants moved for summary judgment, asserting qualified immunity from the plaintiff's damages claims and arguing that the district court should dismiss the plaintiff's case because political affiliation was an appropriate requirement for the performance of the plaintiff's former position. The district court granted the defendants' motion on both grounds, dismissed the plaintiff's case and entered judgment for the defendants. Rodriguez-Burgos now appeals. We affirm the district court's decision on the qualified immunity question, but vacate the entry of summary judgment for defendants on the merits of the plaintiff's claims for injunctive relief. ¹

I. BACKGROUND

In June, 1981, Rodriguez-Burgos, a member of the Partido Nuevo Progresista (PNP), was appointed to the position of Head of the Material Management (or Supplies) Division at PREPA ² by then Executive Director, Alberto Bruno Vega. After the defeat of the PNP by the Partido Popular Democratico (PPD) in the gubernatorial election of November, 1984, Governor Hernandez Colon appointed a new PREPA Executive Director, Carlos Alvarado (one of the named individual defendants herein), to replace Bruno Vega. In January, 1985, Alvarado, with the approval of the PREPA Governing Board, removed Rodriguez-Burgos from his position as Head of Materials Management and reassigned him to the position of Supervisor of Studies and Field Investigations of the Engineering Division.

Rodriguez-Burgos's former position was categorized as an executive level appointment and was classified as a "trust" or "confidential" position under the Puerto Rico Public Service Personnel Act, P.R.Laws Ann. tit. 3, Secs. 1349-51 (1980 & Supp.1987). His new job is categorized as managerial and is not classified as trust or confidential. While the salary level is the same for each job, the plaintiff alleges in his complaint that "he will not be able to receive salary increases which would have routinely accrued to him had he remained in his previous position."

Rodriguez-Burgos and the defendants do not dispute the official job description for the position of Head of the Supplies Division, which provides as follows:

Functions and Responsibilities of the Job:

This is professional and administrative work at an executive level which consists of supervising a considerably large group of employees who perform functions related to the purchases and warehouses of the Authority. Formulates and recommends the policies, practices and procedures for the acquisition of equipment and materials and the control of costs and quality of same. As well as the storage, control of inventories and the receipt and dispatch of materials and equipment. Performs work under general supervision and exercises a high degree of criteria [sic], initiative and self-judgment. The work is judged through conferences and written reports.

Illustrative Examples of the Job:

Directs, organizes, coordinates, plans and supervises the activities related to the purchase and storage of the materials and equipment of the Authority.

Formulates and recommends policies, practices and procedures related to the purchase and storage of materials and equipment.

Is responsible for selling obsolete or unnecessary material for the Authority.

Is responsible for all activities related to the auctions of the Authority.

Recommends and administers the annual operations budget of the Division.

As set forth in the organizational chart of PREPA (attached hereto as Appendix I) and the by-laws of PREPA, ³ the position of Head of the Materials Management (or Supplies) can best be described as a third tier administrative post within the Authority: the Head of the Supplies Division answering to the Director of Administrative Services who, in turn, answers to the Executive Director.

Rodriguez-Burgos claims that the defendants unlawfully removed him from his former position because of his political affiliation with the PNP. The defendants assert that political affiliation with the PDP is an appropriate requirement for the proper functioning of the Head of the PREPA Supplies Division and, in any event, they are entitled to "qualified immunity" from the plaintiff's damages claims. We address the qualified immunity question first.

II. QUALIFIED IMMUNITY

A. The General Rule and Its Limited Application

Assuming arguendo that Rodriguez-Burgos's demotion was unlawful, the disposition of the defendants' claim to qualified immunity from damages turns on the question whether, as of the time of the demotion, January, 1985, the defendants' actions were clearly unlawful. Juarbe-Angueira v. Arias, 831 F.2d 11, 12 (1st Cir.1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1193 (1st Cir.1986). Our precedents establish that "for the most part, in early 1985, the law did not clearly forbid dismissals of those in 'upper-level' managerial-type government positions." Juarbe-Angueira, 831 F.2d at 13. This is so because "there was no clearly established constitutional protection against patronage dismissal 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 v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir.1987) (en banc).

Having set forth this general rule, however, we have struggled to distinguish among positions that fall in the "middle of the spectrum"; that is, we have tried to devise a method for drawing a line between those in the "upper-level" positions who were not clearly protected from politically motivated dismissals and those in the mid- or lower levels of government hierarchy who were protected. ⁴ As will become clear from the discussion that follows, we need not struggle long in this particular case. Applying the general rule, we are able to conclude as a matter of law that the defendants are entitled to qualified immunity from Rodriguez-Burgos's damages claims; his former position at PREPA potentially involved politically sensitive work at the Authority and therefore was not clearly protected against politically motivated dismissal.

We emphasize at the outset, however, that in deciding this qualified immunity issue, we do not resolve close questions of fact or law related to the merits of the plaintiff's claim in light of the law as it exists today. The applicable standards, as derived from the general rule enunciated in Mendez-Palou, reflect the state of the law in early 1985, when PDP-appointed officials actually implemented the employment decisions that have resulted in the flood of "patronage dismissal" cases from Puerto Rico. Being particularized reflections of the general state of the law at that time, they are useful only for the narrow purpose of determining what were not clearly "protected" governmental positions. See Juarbe-Angueira, 831 F.2d at 12 (decision granting partial summary judgment for defendants on qualified immunity ground expresses nothing about plaintiff's entitlement to reinstatement); Mendez-Palou, 813 F.2d at 1261 (same). In short, our task in disposing of the qualified immunity question is to ascertain "what a reasonable person would have known as to the state of the law" at the time of the alleged unlawful acts, "not what the actual answer is" in the particular case. De Abadia v. Izquierdo Mora, 792 F.2d at 1195 (Campbell, C.J., concurring). See also Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988) (distinguishing between standard applied to review of preliminary injunction, qualified immunity, and merits). While there may be overlapping considerations it does not necessarily follow that just because, in a particular case, summary judgment may be proper on the qualified immunity question, it will also be proper on the merits of the plaintiff's claim. See infra part III.

B. The Standards Applied

Turning then to our assessment of whether the plaintiff's position was clearly protected from patronage dismissal, we focus narrowly on the undisputed record facts regarding the nature of the job responsibilities relative to the government agency's undertakings that might be subject to partisan political disputes. Mendez-Palou, 813 F.2d at 1260. Put another way, our task is to discern whether, from the undisputed facts, "the inherent powers and responsibilities" of the plaintiff's job made it one that could influence politically sensitive matters. Id. Our method of analysis is to look first at the extent to which PREPA is involved in politically sensitive activities and second at the extent to which the plaintiff's position could influence those activities. See,...