Rodriguez Rodriguez v. Munoz Munoz, 85-1215

• Decision Date: 18 December 1986
• Docket Number: No. 85-1215,85-1215
• Citation: 808 F.2d 138
• Parties: Hipolito RODRIGUEZ RODRIGUEZ, Plaintiff, Appellee, v. Nicholas MUNOZ MUNOZ, Executive Director of A.D.T., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 138

808 F.2d 138

2 Indiv.Empl.Rts.Cas. 511

Hipolito RODRIGUEZ RODRIGUEZ, Plaintiff, Appellee, v. Nicholas MUNOZ MUNOZ, Executive Director of A.D.T. Defendant, Appellant.

No. 85-1215.

United States Court of Appeals First Circuit.

Argued Feb. 4, 1986.

Decided Dec. 18, 1986.

Jose Angel Rey, Santurce, P.R., with whom Pedro Juan Perez-Nieves, Hector Rivera Cruz, Secretary of Justice, and Rafael Ortiz Carrion, Atty. Gen., San Juan, P.R., were on brief for defendant, appellant.

Jesus Hernandez Sanchez, San Juan, P.R., for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiff-appellee Hipolito Rodriguez Rodriguez brought an action under 42 U.S.C. Sec. 1983 in the district court for the District of Puerto Rico claiming that his first amendment rights were violated when he was dismissed from the position of Regional Director in a Commonwealth of Puerto Rico agency because, allegedly, he planned to run for political office. Defendant in the action was Nicholas Munoz Munoz, the supervisor who had discharged him. The district court rejected Munoz's qualified immunity defense, ruling that the law against discharge of a public employee for political reasons had been clearly established. The court then sent the case to a jury, instructing it to find for plaintiff if he had been "dismissed solely for his political activities." The jury found for Rodriguez, awarding him a total of $100,000 in damages, and the court ordered that he be reinstated in his job. Rodriguez Rodriguez v. Munoz Munoz, 603 F.Supp. 349 (D.P.R.1985).

On appeal, defendant Munoz advances new and different arguments in contending that we should overturn the judgment of the district court. When the case was argued below, the parties--and the district court--assumed that even though the discharged plaintiff belonged to the same party as his supervisor, and was not fired for any doctrinal difference, it was a patronage dismissal case governed by the standards articulated in 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). In Branti, the Supreme Court held that a public employee could not be dismissed solely because of his party affiliation, unless the employer could demonstrate that "party affiliation [was] an appropriate requirement for the effective performance of the public office involved." ¹ 445 U.S. at 518, 100 S.Ct. at 1295. On appeal Munoz points out for the first time that this case involves a discharge not because of plaintiff's political affiliation, as did Elrod and Branti, but rather because of his political activity. This case, Munoz insists, is closer to Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), where, in analyzing firings resulting from a public employee's outspoken remarks, the Supreme Court employed a balancing test, balancing the employee's right to speak up on matters of legitimate public concern against the government's need for efficiency in the workplace. Munoz asserts that the district court here should not simply have assumed that if plaintiff was fired because of his political plans, the discharge violated his first amendment rights. Rather the court should have balanced the relative importance of plaintiff's political activities against the government's legitimate needs.

Defendant further contends--also for the first time on appeal--that even assuming Elrod-Branti controls, plaintiff's job is one where political affiliation would be an appropriate requirement for the position of Regional Director. Thus, he argues, the district court erred in not finding the discharge a constitutionally permissible one under Elrod-Branti. ² At the very least, he says, the district court erred in rejecting defendant's qualified immunity claim, since it was by no means clearly established at the time he discharged plaintiff that plaintiff's position was of a type protected under Elrod and Branti. See De Abadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.1986) (law very murky as to what higher level positions were protected against political discharges and what were not. Id. at 1194-95 (Campbell, C.J., concurring)).

The above arguments are powerful ones. Normally, however, we would be precluded from reaching them by Munoz's failure to raise them below. It is a fundamental principle that, except in rare cases where paramount considerations of justice require, we do not review on appeal issues that were not first presented to the district court. See United States v. Ven-Fuel, 758 F.2d 741, 760 (1st Cir.1985); Codex Corp. v. Milgo Electronic Corp., 717 F.2d 622, 629 (1st Cir.), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1983). Upon consideration, we believe this to be one of the rare cases justifying departure from the above principle. The confusion below was brought about in large part by the absence of clarity, and indeed outright confusion, in the relevant law. We believe we would compound the confusion were we, at a time when the Circuit is confronted with a number of political discharge cases, to affirm an incorrect analysis and result because of defendant's failure to have made the appropriate arguments below. We realize that a reversal on grounds not raised may be seen as "sandbagging" the trial judge, who of course was not responsible for coming forward with legal arguments not raised by the parties. We emphasize that nothing herein is to be taken as criticism of the judge. Still, we think that justice is better served in this unusual case by applying what we believe to be a correct analysis rather than by letting stand a wrong and potentially misleading precedent.

I.

Defendant Munoz Munoz is a member of the New Progressive Party ("Partido Nuevo Progresista," or "PNP") and, at the time of Rodriguez's discharge, was the Executive Director of the Right to Work Administration ("Administracion del Derecho al Trabajo," hereinafter, the "Agency"). In March 1981, Munoz appointed plaintiff Rodriguez (also a member of PNP) Regional Director for the Humacao Region, one of nine Regional Directors for the Agency. According to testimony at trial, plaintiff was responsible for implementing at the regional level the Agency's "mission," that is, to provide job training and find employment for the economically underprivileged, according to the region's needs. Plaintiff, as Regional Director, reported directly to defendant Munoz. The position of Regional Director is classified as one of "trust" ("de confianza") under Puerto Rico personnel law, the only position to be so classified at the regional level. In contrast to a "career" employee, an employee of "trust" may, under Puerto Rico law, be discharged at will and without cause. P.R.Laws Ann. tit. 3, Sec. 1350 (1984). ³

Sometime in 1982, Rodriguez formed a "steering committee" with several friends and family members, and allegedly began meeting at a neighborhood bar, during nonworking hours, to plan his candidacy for mayor of Las Piedras (a town in the Humacao Region). Plaintiff alleges that defendant Munoz, who supported the incumbent mayor (also of the PNP), knew about his political ambitions, and sought to pressure him to abandon his plans to run in the PNP primary. When Rodriguez refused to do so, Munoz allegedly fired him during a meeting on March 18, 1983. Munoz countered that Rodriguez resigned when Munoz sought to transfer him to a different position because of his unsatisfactory performance as Regional Director. In particular, Munoz presented testimony at trial about certain "communications problems" caused by plaintiff at the Humacao regional office, and about plaintiff's alleged use of his position to advance his political career by favoring those who supported him.

Plaintiff commenced a section 1983 action against Munoz in May 1983, seeking back pay, compensation for pain and suffering, punitive damages, and reinstatement. The gravamen of his complaint is that he has a right under the first amendment to engage in political activities (in particular, to run for political office), and that Munoz abridged that right by firing him. After two unsuccessful motions for summary judgment as well as a motion for directed verdict by defendant on grounds, inter alia, of qualified immunity, the case was tried to a jury. The jury found for plaintiff, and awarded him $60,000 in compensatory damages and $40,000 in punitive damages. The district court permitted the substitution of Munoz's successor to the position of Executive Director of the Agency (who was of the rival Popular Democratic Party, or "Partido Popular Democratico" ("PPD")) for the purposes of injunctive relief, and ordered Rodriguez reinstated to his former position. Defendant now appeals.

II.

On appeal, Munoz raises a number of issues, only some of which we need address. Since we are vacating the district court's judgment, and remanding for a bench trial, defendant's challenges to various jury instructions from the first proceeding as erroneous are moot. We turn first to defendant's argument that the district court erred in rejecting his qualified immunity defense, since, if correct, it would be dispositive of plaintiff's claim for money damages, leaving only a claim for injunctive relief.

A. Qualified Immunity

On August 29, 1983, and again on December 3, 1984, defendant sought summary judgment on grounds, inter alia, of qualified immunity. Under the now familiar test for qualified immunity, defendant is shielded from liability for damages so long as his conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S.Ct....