Roman Melendez v. Inclan, 86-1532

• Decision Date: 01 December 1986
• Docket Number: No. 86-1532,86-1532
• Citation: 826 F.2d 130
• Parties: Pedro ROMAN MELENDEZ, Plaintiff, Appellee, v. Roberto INCLAN, etc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 130

826 F.2d 130

Pedro ROMAN MELENDEZ, Plaintiff, Appellee, v. Roberto INCLAN, etc., Defendant, Appellant.

No. 86-1532.

United States Court of Appeals First Circuit.

Heard Dec. 1, 1986.

Decided Aug. 4, 1987.

Carlos Del Valle with whom Marcos A. Ramirez Irizarry, Hector Rivera Cruz, Secretary of Justice, and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendant, appellant.

Pedro Miranda Corrada, San Juan, P.R., with whom Hector Urgell Cuebas and Jose Roberto Feijoo, Santurce, P.R., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

This case is another in the large group of cases before this circuit concerning alleged political dismissals in Puerto Rico following the 1984 election won by the Popular Democratic Party ("PDP") over the New Progressive Party ("NPP").

Plaintiff Pedro Roman Melendez ("Roman") brought this action for declaratory and injunctive relief and back pay under 42 U.S.C. Sec. 1983 (1982) in the United States District Court for the District of Puerto Rico against defendant Roberto Inclan ("Inclan"). Roman alleged that Inclan improperly dismissed him from the position of Regional Director of the Arecibo Region of the Puerto Rico General Services Administration ("GSA") solely because of his political affiliation with the NPP, in violation of the First and Fourteenth Amendments of the Constitution. Roman sought reinstatement, back pay and damages.

On November 22, 1985 Inclan moved for summary judgment on the grounds both that political loyalty was a proper requirement for the effective performance of Roman's office and that the damages action should be dismissed on the basis of Inclan's qualified immunity. On May 9, 1986 the district court denied this motion, 641 F.Supp. 998. After a bench trial the court on May 22, 1986, ordered reinstatement of Roman to his former position and directed Inclan to pay $12,442.60 in damages and back pay, plus interest to Roman.

I.

The district court found basically as follows:

Roman is a certified civil engineer who commenced public service in 1955. He is a member of the New Progressive Party, a fact well known by his fellow workers. In 1973, under the first administration of the present Puerto Rico Governor, Rafael Hernandez Colon, he was appointed to the position from which he was recently discharged, Regional Director for the Arecibo Region of the Puerto Rico General Services Administration. ¹ In 1979 the position of regional director was classified under the new Personnel Act as one of trust ("de confianza"), meaning that under the laws of Puerto Rico its occupant serves at the pleasure of the administration. Roman occupied this office from 1973 until March 13, 1985 when he was removed by Inclan and reverted to his career position of Engineer VI. His monthly salary was accordingly reduced from $1,963 to $1,502.80.

Inclan took office as the Administrator of General Services on January 14, 1985, soon after Governor Hernandez Colon's PDP administration came to power. Inclan met on January 22, 1985 with the eight regional directors of the agency, all of whom were members of the NPP. The district court found that even though Inclan did not expressly request Roman's resignation, "the message to resign was implicit or implied."

Upon being advised that Roman expected to retire in March 1985, Inclan allowed him to continue in the position of regional director. But while Roman retained the title of regional director, Inclan appointed one Luis A. Martinez, a member of the PDP, as the acting regional director. On January 28, 1985 Martinez ordered the locks changed on Roman's office. When Inclan later learned that Roman would not be eligible for retirement until September 1986, he issued a letter demoting Roman on March 13, 1985.

From the January 22 meeting to the March 13 demotion, Roman had retained no actual authority as regional director, being allowed only to perform inspection at ongoing projects. As of the date of the trial, Martinez continued to occupy the position of regional director, notwithstanding the fact that he is not a licensed engineer, an official requirement for the position. The court found that there was no evidence that Roman was inefficient or unqualified for the regional director's job, and that Inclan's true reason for demoting Roman was the latter's political affiliation with the NPP.

The court went on to determine that political affiliation was not an appropriate requirement for the effective performance of the job of GSA regional director. Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). It ruled that Roman's demotion was, therefore, unconstitutional.

In concluding that political affiliation was not an appropriate requirement for the position of GSA regional director, the district court made a number of findings concerning the functions of GSA and the nature of the regional director's position. It found that GSA is organized to operate seven programs. Plaintiff served in the program that was concerned with the maintenance and conservation of public buildings, mainly schools. The position of regional director within that program (there are eight regions, hence eight regional directors throughout Puerto Rico), was found to rank fifth in the GSA hierarchy after the administrator, the deputy administrator, the assistant director for the construction and conservation program, and the head of the technical staff. ² The court further said that the program under which Roman worked (construction and conservation) is "largely directed from the GSA central office by the assistant administrator together The above findings and rulings preceded our decision in Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986), in which this circuit, sitting en banc, construed the standards applicable in these cases.

                with a staff of seven engineers and two architects located at the central office."    Such program is involved solely with the repairs and maintenance of public buildings, predominantly public schools.  Moreover, the court found that the decision of when to build a new school is made exclusively by the Department of Education, and the actual construction of such a school is the responsibility of the Public Buildings Administration, not the GSA.  The budget of the GSA is "implemented and prepared at the central office" and any projects the regional director recommends to be built in a particular school must be approved by that office.  Finally, the court concluded that the only independent authority the regional director has is that of hiring brigades of temporary employees to work on repair or construction projects.  However, the court added that even the pay scales of these employees were not fixed by the regional director
                

II.

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court decided that the First Amendment protects public employees who do not occupy a "policymaking" or "confidential" position from being discharged because of their political affiliation. 427 U.S. at 367, 96 S.Ct. at 2686; id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). Four years later, in Branti, pertaining to an assistant public defender's position, the Court stated that "the ultimate inquiry is ... whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1294.

In Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (en banc) (1st Cir.1986), this court articulated a two-part inquiry, derived from the Supreme Court's decisions, as being applicable in cases of political dismissals.

We said that the first question to be asked was "whether the position at issue, no matter how policy-influencing or confidential it may be, relates to 'partisan political interests ... [or] concerns.' " Id. at 241. "This step is designed to cut off from further consideration those positions involving matters devoid of partisan concerns, such as the 'proper flow of work in an agency, ... or the preferred accounting method or computer system.' " Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987). For a position to relate to partisan political interests or concerns, we said

there need not exist presently a political disagreement over the proper role of government in the particular area of governance at issue. The position at issue need only involve "government decisionmaking on issues where there is room for political disagreement on goals or their implementation."

Id. at 1258.

Our interpretation was meant to assure that, in recognizing First Amendment protection for the vast majority of government employees, courts did not overlook "that representative government needs a certain amount of leeway for partisan selection of agents in order to work." Jimenez Fuentes, 807 F.2d at 241. As Judge Coffin wrote for the en banc court,

Appropriateness [of party affiliation] is, we think, a corollary to our system of determining the direction of governmental entities by the popular election of top office holders who have taken or are considered to have taken positions on one or more issues during a campaign. In order for the new administration to be given an opportunity to fulfill expectations, it must have available significant facilitators of policy, people who have the personal and partisan loyalty, initiative, and enthusiasm that can make the difference between the acclaimed success of a government agency or program and its failure or, more typically, its lackluster performance. The presence of such persons Id.

advances the goals of representative government; their absence, in Elrod's term, "undercut[s]" such government. 427 U.S. at 367, 96 S.Ct. at 2687.

If the first inquiry--directed to whether the position relates to partisan political interests or concerns--is...