Cortes-Reyes v. Salas-Quintana

United States Court of Appeals
For the First Circuit

No. 08-2210

GILBERTO CORTÉS-REYES, ET AL.,

Plaintiffs, Appellees,

v.

SALVADOR SALAS-QUINTANA, in his personal capacity and in his
official capacity as Secretary of the Natural and Environmental
Resources Department of the Commonwealth of Puerto Rico; LOURDES
CABEZUDO, in her personal capacity and in her official capacity
as Human Resources Director of the National & Environmental
Resources Department of the Commonwealth of Puerto Rico,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Torruella, Baldock,* and Lipez, Circuit Judges.

Michelle Camacho-Nieves, Assistant Solicitor General, with
whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-
Rabell, Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy
Solicitor General, were on brief, for appellants Salas-Quintana and
Cabezudo.
Francisco J. González-Magaz, for appellees.

June 17, 2010

*
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. This political discrimination

lawsuit was filed in January 2002 by thirty-six former Ranger

cadets of the Puerto Rico Department of Natural and Environmental

Resources ("DNER") pursuant to 42 U.S.C. § 1983. The cadets

alleged that they were summarily terminated due to their political

affiliation with the New Progressive Party ("NPP"), in violation of

their First Amendment rights, and without notice or a hearing, in

violation of their due process rights under the Fourteenth

Amendment. They sued three defendants, Salvador Salas-Quintana,

the Secretary of the DNER at the time of their termination, Lourdes

Cabezudo, the Director of Human Resources for the DNER, and Francis

Nieves, Special Assistant to the Secretary.

Twenty-eight of the plaintiffs convinced a jury that

their due process rights had been violated by defendants Salas-

Quintana and Cabezudo. The jury also determined that seven of

those twenty-eight plaintiffs had experienced political

discrimination. The jury awarded compensatory damages in the

amount of $19,000 to each of the twenty-eight plaintiffs for the

violation of their due process rights. In addition, the jury

awarded $19,000 in punitive damages to each of the seven plaintiffs

for the violation of their First Amendment rights. The defendants

then moved for judgment as a matter of law or for a new trial; the

plaintiffs moved for reinstatement to their positions. The

district court denied both motions. Defendants Salas-Quintana and

- 2 -
Cabezudo ("the defendants") now appeal the district court's denials

of their post-trial motions.1

Because we find that the defendants were entitled to

qualified immunity on the due process claim, we vacate the jury's

finding of a due process violation and the related award of

compensatory damages. We affirm the jury's finding of a First

Amendment violation and the award of nominal and punitive damages

for that violation.

I.

We recite some of the relevant facts here in the light

most favorable to the verdict for the purpose of background.

Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 41 (1st

Cir. 2009). We provide more details when analyzing the claims of

the plaintiffs.

This case, not surprisingly, arises from events following

the general elections held in Puerto Rico on November 8, 2000 which

resulted in the election of a new governor. See, e.g., Rodríguez-

Marín v. Rivera-González, 438 F.3d 72, 75 (1st Cir. 2006). Unlike

the previous governor, who had been a member of the NPP, the new

governor was a member of the Popular Democratic Party ("PDP"). In

January of 2001, a new secretary, Carlos Padín, was appointed by

the new PDP administration to head the DNER.

1
The plaintiffs have not appealed the denial of their request
for reinstatement.

- 3 -
 Shortly before the election, in August of 2000, the DNER

published a job announcement seeking cadets for its Ranger Corps.

The Ranger Corps is a law enforcement body whose mission is to

protect the environment in Puerto Rico. Rangers are trained in

environmental protection. They carry guns and must receive

specialized firearms training. Whereas Rangers are so-called

"regular employees" under the Puerto Rico government's

classification system, cadets are "transitory employees." A cadet

becomes a Ranger by meeting certain physical requirements, passing

psychological exams, and successfully completing a training program

which is provided by the DNER after the cadets are hired.

The twenty-eight remaining plaintiffs in this case ("the

plaintiffs") were all hired in late August and early September 2000

after responding to the August 2000 announcement seeking cadets.

They were all members of the NPP, hired by the Secretary of the

DNER under the NPP administration. As part of the hiring process,

the plaintiffs were sent by the DNER to receive psychological

testing at INSPIRA, a mental health testing facility. All of the

plaintiffs received favorable evaluations. When the new PDP

administration was elected in November 2000, the cadets had not yet

been trained as Rangers. In December 2000, they were sent to a

specially-convened training academy, but the academy was suspended

after only a week. Although the cadets were told that their

- 4 -
training would resume after the holidays, the training academy was

never reconvened.

Instead, under Secretary Padín, the DNER waffled about

the fate of the cadets and whether to resume the training academy,

which had been scheduled to reconvene on January 9, 2001. In early

2001, the Secretary asked Ferdinand Lugo-González, the legal

advisor to the transition team, to conduct a review of all of the

cadets' files, with a specific focus on whether the cadet had or

had not been administered the requisite psychiatric and

psychological evaluations.

Lugo-González testified that the review was conducted

because Secretary Padín was being pressured by the PDP leadership

to fire the cadets who had been appointed under the NPP

administration. According to Lugo-González, the resulting report,

which was written by another member of the transition team,

concluded that the cadets were qualified and recommended that the

academy be renewed. In response, according to Lugo-González,

Secretary Padín determined that he could not legally lay off the

cadets. Rather than reconvening the academy, however, the DNER did

nothing. Although their initial six-month contracts had not been

renewed and their training had never been resumed, the plaintiffs

continued to be employed as cadets and to assist the Rangers

throughout Puerto Rico. As Lugo-González explained the plaintiffs'

- 5 -
continued presence at the DNER, "the Department had to use these

Rangers, they needed them."

In late October 2001, Secretary Salas-Quintana replaced

Secretary Padín at the DNER after Padín resigned. During a chance

encounter in the DNER building, Salas-Quintana asked Lugo-González

why Secretary Padín had not yet dismissed the cadets. He added

that he viewed it as his responsibility as Secretary of the DNER to

dismiss those "Republicanos."2 To that end, Salas-Quintana created

a committee to once again review the plaintiffs' appointments.

Cabezudo was a member of that committee. She testified that she

reviewed the personnel file of every cadet. As a result, each

plaintiff received a letter in January 2002 stating that as of

January 15, 2002, his or her appointment would not be renewed for

failure to "comply with the requirement of a[] psychological

evaluation." The plaintiffs heard Salas-Quintana say on a radio

program that the cadets who had been dismissed would be reinstated

if they could produce evidence that they had received psychological

evaluations. Despite submitting copies of their psychological

evaluations at INSPIRA to the Human Resources Office of the DNER,

they were not returned to their positions.

Thirty-six cadets, the original plaintiffs, filed this

suit in federal district court on January 25, 2002 pursuant to 42

2
According to the record, "Republicanos" is a term used to
refer to members or sympathizers of the NPP, or those who are pro-
statehood.

- 6 -
U.S.C. § 1983 against Salas-Quintana, Cabezudo and Nieves in their

individual and official capacities. They alleged that the

defendants violated their First Amendment rights by summarily

terminating them due to their political affiliation, and violated

their due process rights when they failed to give them notice or a

hearing in connection with their termination.

After a trial, the jury found that Salas-Quintana and

Cabezudo had violated the rights of twenty-eight of the original

thirty-six plaintiffs.3 According to the jury, seven plaintiffs

had experienced both political discrimination and a violation of

their due process rights. The jury found that only the due process

rights of an additional twenty-one plaintiffs had been violated.

The jury awarded $19,000 in punitive damages on the First Amendment

claim and $19,000 in compensatory damages on the due process claim

to each of the seven plaintiffs who prevailed on both. It also

awarded $19,000 in compensatory damages to each of the twenty-one

plaintiffs who prevailed on their due process claims.

The district court denied both the defendants' motion to

set aside the verdict pursuant to Fed. R. Civ. P. 50(b) or for a

new trial under Fed R. Civ. P. 59, and the plaintiffs' request that

the court order their reinstatement. Responding to a request made

3
The district court dismissed all claims against defendant
Nieves. That determination has not been appealed. The eight
original plaintiffs whose claims were dismissed are not parties to
this appeal.

- 7 -
by the plaintiffs immediately after the verdict, the district court

awarded $1.00 in nominal damages as to each of the seven plaintiffs

who prevailed on their political discrimination claims because it

found that such an award was necessary to support the punitive

damages award on those claims. This appeal followed.

II.

On a motion for judgment as a matter of law, a jury

verdict may only be set aside if the court determines that "'the

evidence could lead a reasonable person to only one conclusion.'"

Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993) (quoting

Hiraldo-Cancel v. Aponte, 925 F.2d 10, 12 n.2 (1st Cir. 1991)). In

conducting our review, "we do not evaluate the credibility of the

witnesses or weigh the evidence." Rodriguez-Marin, 438 F.3d at 75.

Our review of the district court's denial of a motion for judgment

as a matter of law is de novo. Mendez-Matos v. Municipality of

Guaynabo, 557 F.3d 36, 56 (1st Cir. 2009). We must determine

whether, "viewing the evidence in the light most favorable to the

verdict, a rational jury could have found in favor of the party

that prevailed." Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 22

(1st Cir. 2006). Only if the facts and inferences "point so

strongly and overwhelmingly in favor of the movant that a

reasonable jury could not have [returned the verdict]" will we set

it aside. Acevedo-Diaz, 1 F.3d at 66 (quotation marks and citation

omitted).

- 8 -
 We review the district court's decision to deny the

defendants' motion for a new trial for clear abuse of discretion.

Acevedo-Luis v. Pagán, 478 F.3d 35, 40 (1st Cir. 2007). The

district court, in turn, "may grant such a motion only if 'the

verdict is against the clear weight of the evidence, such that

letting it stand would result in a miscarriage of justice.'" Id.

(quoting Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d

85, 104 (1st Cir. 2006)).

III.

A. First Amendment Claim

The First Amendment protects non-policymaking public

employees from adverse employment decisions based on their

political affiliation. See Gomez v. Rivera Rodriguez, 344 F.3d

103, 110 (1st Cir. 2003) (citing Rutan v. Repub. Party, 497 U.S.

62, 75 (1990)). The freedom to support a particular political

party is "integral to the freedom of association and freedom of

political expression that are protected by the First Amendment."

Welch v. Ciampa, 542 F.3d 927, 939 (1st Cir. 2008).

In order to make out a case of political discrimination,

a plaintiff must adduce evidence permitting a rational jury "to

conclude that the challenged personnel action occurred and stemmed

from a politically based discriminatory animus." Rivera-Cotto v.

Rivera, 38 F.3d 611, 614 (1st Cir. 1994). The plaintiff's case

must do more than simply juxtapose evidence of unfair treatment

- 9 -
with evidence that an employer's political affiliation differs from

the plaintiff's own. Padilla-Garcia v. Guillermo Rodriguez, 212

F.3d 69, 74 (1st Cir. 2000). Instead, there must be evidence from

which a jury reasonably may infer that the plaintiff's

constitutionally protected conduct (in this instance, an

affiliation with the NPP) was a "substantial or motivating factor"

behind the plaintiff's discharge. See Welch, 542 F.3d at 936.

In its defense, an employer may seek to discredit the

plaintiff's evidence that there was an impermissible motive for his

or her dismissal. An employer may also defend against such a suit

by producing "enough evidence to establish that the plaintiff's

dismissal would have occurred in any event for nondiscriminatory

reasons." Acevedo-Diaz, 1 F.3d at 67. This affirmative defense

requires that an employer show by a preponderance of the evidence

that it would have taken the same action regardless of the

plaintiff's political affiliation. Mt. Healthy City School Dist.

Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977); Padilla-Garcia, 212

F.3d at 77 (1st Cir. 2000). An employer may successfully raise a

Mt. Healthy defense by establishing that the plaintiff's activity

or status, although it may have been improperly considered, was not

the but for cause of the adverse employment action. See Welch, 542

F.3d at 941 (citing Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st Cir.

1994). It is the defendant's burden to "persuade[] the factfinder

that its reason is credible." Padilla-Garcia, 212 F.3d at 77-78.

- 10 -
 In reviewing the district court's denial of defendants'

Rule 50(b) motion for judgment as a matter of law, therefore, we

would find grounds for reversal only if: (1) the plaintiffs did not

introduce sufficient evidence to permit a reasonable jury to

conclude that the political animus was a substantial or motivating

factor behind the firing, or (2) the record evidence compels the

conclusion that the plaintiffs would have been dismissed even

without any discriminatory animus that may have existed. See

Acevedo-Diaz, 1 F.3d at 67.

1. The plaintiffs' evidence of political discrimination

The plaintiffs presented ample evidence permitting a

reasonable jury to conclude that their dismissals were the result

of discrimination. The jury heard testimony at trial from the

plaintiffs describing the anti-NPP environment at the DNER after

the elections. As one cadet put it, after the new administration

was elected in November 2000, officers in the Ranger corps

discussed how "they were going to throw us out because we came in

under the administration of the New Progressive Party." Another

cadet explained that a senior officer told him in the presence of

other agents "that having them won, that we were going to leave.

We had a short time there."

The jury also heard testimony that this hostility towards

the NPP cadets permeated the PDP government to the extent that the

leadership of the DNER was being pressured to fire the cadets well

- 11 -
before Salas-Quintana took charge and made the decision to dismiss

them. Lugo-González, a legal advisor to Secretary Padín during the

transition from the NPP administration to the PDP in early 2001,

testified that one of the issues of major concern to the transition

committee was the training academy for the Ranger cadets.

Secretary Padín had told him "that the Academy was not being

continued because those people had been selected under the

administration of the New Progressive Party, and that is the only

reason. Because judicially and administrat[ively], the [c]adets

were qualified."4 Lugo-González testified that it was clear from

a meeting at the Governor's office he attended that the leadership

of the PDP wanted the cadets to be laid off. When he communicated

this desire to Padín, Padín refused to lay off the cadets because

"the only reason that they don't want to renew the Academy is

because they had been appointed under the New Progressive Party

Administration."5

The plaintiffs introduced further testimony that both

Salas-Quintana and Cabezudo were fully cognizant of the cadets'

political affiliations. Lugo-González recounted a conversation he

4
Although this testimony might have been excluded on hearsay
grounds, no such objection was made by the defendants.
5
Lugo-González made this statement as part of his response to
the question on direct examination, "[w]as there any other source
of pressure, concerning the appointment of the cadets?" The
defendants' hearsay objection to this testimony was overruled at
trial and they have not pressed the issue on appeal.

- 12 -
had with Salas-Quintana in late October 2001 in which Salas-

Quintana referred specifically to the cadets' political

affiliations, announcing, "I am going to lay all those republicanos

off." Lugo-González testified that Salas-Quintana told him, "now

that I'm going to be the Secretary, it is my responsibility, my

obligation, my determination, I am the one that is going to go

ahead and lay [the cadets] off." One plaintiff testified that

Cabezudo, the Director of Human Resources, refused to give him a

copy of his personnel file after his termination, telling him that

the department "is now under a new administration, under a new

power," and that he should have made the request of "the other

secretary who did belong to [his] party."6 Cabezudo also admitted

that she conducted a review of the cadets' files which, unlike the

review conducted under Secretary Padín, concluded that they were

not qualified because they had gone to the wrong testing center for

psychological testing. She also oversaw the preparation of the

letters informing the plaintiffs that they had been fired.7

6
Although Cabezudo denied ever meeting any of the plaintiffs,
the jury was free to make the credibility determination favoring
the plaintiffs.
7
The defendants contend that the plaintiffs' showing of a
political motive for the plaintiffs' firings is undercut by
evidence that some of the cadets who were dismissed were members of
the PDP, while others who were not dismissed were members of the
NPP. The defendants direct us to no evidence in support of the
former claim. The defendants direct us to only one page of
testimony in support of the latter contention. That testimony
seems to suggest that two cadets who were not fired along with the
majority of the class may have been NPP members. Another portion

- 13 -
 In short, based on the totality of the evidence

describing the events leading up to the plaintiffs' firing,

including the actions and statements of Salas-Quintana and Cabezudo

themselves, it was reasonable for the jury to conclude that the

defendants shared the prevailing sentiment among PDP officials that

the cadets should be fired because of their alliance with the NPP,

and acted accordingly.8

2. The Mt. Healthy defense

Defendants assert on appeal that they successfully

developed their Mt. Healthy defense at trial by establishing, by a

preponderance of the evidence, that they would have taken the same

action regardless of the plaintiffs' political affiliation with the

NPP. They contend that the plaintiffs were dismissed from their

positions because they either did not complete psychological

evaluations or their evaluations were administered by INSPIRA,

of the testimony, however, indicates that both of those cadets
"were also dismissed" at a later date. Taken in the light most
favorable to the verdict, the additional information that two NPP
cadets were fired later than the plaintiffs does not suggest that
the jury was unreasonable in its conclusion that seven of the
plaintiffs were fired because of their political affiliation.
8
The defendants introduce no additional arguments in support
of their claim that they were entitled to a new trial beyond their
assertion that the jury verdict was against the clear weight of the
evidence. As described above, the evidence supporting the
political discrimination claim was more than sufficient to support
the verdict. The district court did not abuse its discretion when
it denied the motion for a new trial.

- 14 -
whose contract with the DNER provided for other psychiatric and

psychological services, but not for testing.

The defendants did present evidence at trial that the

contract with INSPIRA did not cover psychiatric and/or

psychological testing, whereas a contract with another provider,

Carribean Medical Testing, did provide for such testing. Cabezudo

also testified that she wrote a report at Salas-Quintana's behest

in which she identified those cadets who had psychological

evaluations from INSPIRA as unqualified for their positions.

To rebut that defense, the plaintiffs presented evidence

from José R. Rodríguez-Rosado, who was hired to coordinate the drug

and psychiatric testing for the cadets in 2000. Rosado testified

that INSPIRA was chosen by Secretary Pagán, the PDP Secretary who

preceded Salas-Quintana, and the Comptroller to conduct the tests

because it submitted the lowest price estimate. Rosado explained

that the DNER requested that INSPIRA evaluate the candidates for

Ranger cadets and that, accordingly, INSPIRA performed the

evaluations. The plaintiffs corroborated this account, testifying

that they were sent to INSPIRA by the DNER for the necessary

psychological evaluations. The plaintiffs' INSPIRA evaluations

themselves were introduced into evidence.

Hearing this evidence, a reasonable jury could have

concluded that the INSPIRA evaluations were precisely the tests

that were required by the DNER in accordance with the Ranger bylaws

- 15 -
and that the defendants' claim otherwise was a pretext for the

unlawful firing of the plaintiffs. It was the jury's prerogative,

after hearing the conflicting accounts of the INSPIRA evaluations,

to find that political affiliation, not the use of the wrong

psychological testing center, was the "but-for" cause of the

plaintiffs' dismissal. The evidence did not compel the jury to

find that the defendants were entitled to prevail on their Mt.

Healthy defense as a matter of law.

B. Due Process and Qualified Immunity

The defendants argue that no reasonable jury could have

found that the plaintiffs' due process rights had been violated

because they did not have an entitlement to retain their positions

as cadets. Without such an entitlement, the plaintiffs would not

have a valid claim under the due process clause, which only

protects government employees who have a property interest in

continued employment. Costa-Urena v. Segarra, 590 F.3d 18, 26 (1st

Cir. 2009). We need not reach the merits of this property interest

argument because the defendants were entitled to qualified immunity

from suit on the due process claim.9

9
Although the district court did not address this qualified
immunity claim in its opinion denying the defendants' motion for
judgment as a matter of law, the defendants raised their claim of
qualified immunity in both their 50(a) and 50(b) motions as well as
on appeal. Thus, it is properly before us. We review the implicit
denial of qualified immunity de novo. Rodríguez-Marín, 438 F.3d at
84.

- 16 -
 Qualified immunity protects government officials "from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known." Pearson v. Callahan,

129 S. Ct. 808, 815 (2009) (quotation marks and citation omitted).

The qualified immunity analysis has two parts. A court must decide

whether the facts shown by the plaintiff make out a violation of a

constitutional right and whether the right was "clearly

established" at the time of the alleged violation by the defendant.

Id. at 815-16; Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.

2009).10

Supreme Court doctrine had required that we begin our

qualified immunity analysis by determining whether the plaintiff

has shown a constitutional violation. See Saucier v. Katz, 533

U.S. 194, 201 (2001) (holding that a court considering qualified

immunity must decide, as a "threshold question," whether the facts

alleged show the violation of a constitutional right). Recently,

however, the Court relaxed that requirement, allowing us to bypass

the initial step in certain circumstances. See Pearson, 129 S. Ct.

at 818-19; Maldonado, 568 F.3d at 270. The Court agreed that the

10
The district court erroneously submitted the question of
qualified immunity to the jury. Whether defendants are entitled to
qualified immunity "is a legal question for the court to decide."
Rodríguez-Marín, 438 F.3d at 83. The jury's role is to "determine
any preliminary factual questions" so that the court can determine
the "legal issue of the official's reasonableness." Id. at 83-84.

- 17 -
underlying principle of "encouraging federal courts to decide

unclear legal questions in order to clarify the law for the future

'is not meaningfully advanced . . . when the definition of

constitutional rights depends on a federal court's uncertain

assumptions about state law.'" Pearson, 129 S.Ct. at 819 (quoting

Egolf v. Witmer, 526 F.3d 104, 109-111 (3d Cir. 2008)). This is a

case in which any conclusions we might draw about the relevant

Commonwealth law would be uncertain at best. Moreover, as we

explain below, that very uncertainty is critical to our analysis of

the clearly established prong of the qualified immunity doctrine.

Property interests subject to due process protection are

delineated "by existing rules or understandings that stem from an

independent source such as state law." Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972). In order to create a property interest, that

independent source must "give the individual a legitimate claim of

entitlement to some sort of benefit." Hatfield-Bermudez v.

Aldanondo-Rivera, 496 F.3d 51, 59 (1st Cir. 2007). Whether the

plaintiffs had a clearly-established property interest in their

employment as cadets is therefore a question of Puerto Rico law.

See Costa-Urena, 590 F.3d at 27.

The law is "clearly established" if courts have ruled

that "materially similar conduct was unconstitutional," or if there

is a previously identified general constitutional principle that

applies "with obvious clarity to the specific conduct at issue."

- 18 -
Jennings v. Jones, 499 F.3d 2, 16 (1st Cir. 2007). In other

words, a right is clearly established if a reasonable official is

on clear notice that what he or she is doing was unconstitutional.

Costa-Urena, 590 F.3d at 29. It was the plaintiffs' burden to

demonstrate that the law was clearly established in early 2002,

when the termination took place. See Davis v. Scherer, 468 U.S.

183, 197 (1984); Horta v. Sullivan, 4 F.3d 2, 13 (1st Cir. 1993).

As we have had occasion to observe in the past,

translated Puerto Rico law is both sparse and contradictory on the

question of the property interest in continued employment of

transitory government employees. Hatfield-Bermudez, 496 F.3d at 60

(noting that "it is not entirely clear" what the Puerto Rico

Supreme Court's current position is on whether a non-career

government employee has a legitimate expectation of permanent

employment). The plaintiffs cite two cases on point available to

us in English translation. The plaintiffs do not cite or provide

any additional cases on the question, nor has our independent

research revealed any additional translated cases.

In the earlier of the two available opinions, the Puerto

Rico Supreme Court "indicated that there may be certain

circumstances in which a transitory employee could have a

legitimate expectancy of contract renewal." Id. at 60 (emphasis in

original)(citing Lupiáñez de González v. Cruz, 5 P.R. Offic. Trans.

966 (1977) (finding that a non-career employee who had been told

- 19 -
that a permanent position was being created for her had a right to

due process before being terminated)). In the latter of the cases,

however, the Puerto Rico Supreme Court held that a "transitory

employee" has "a job retention expectancy only during the term of

the appointment." Dep't of Natural Res. v. Correa, 18 P.R. Offic.

Trans. 795, 804 (1987). The Court stated that "[a] person who has

a transitory appointment, knowing that it expires at the end of the

period for which it is given, cannot validly claim that he had a

real expectancy that this type of appointment would offer him a

permanent job status or the right to have the same constantly

renewed." Id. at 806.

In the face of two cases that seem to give opposing

answers to the question whether a transitory government employee

has an entitlement to his or her continued employment, the

plaintiffs do not explain how the law clearly established that

conduct "materially similar" to that of the defendants in this case

was unconstitutional at the time the plaintiffs were fired.11 The

plaintiffs were hired under bylaws that required that they receive

training, and the successful completion of that training would

result in their becoming non-transitory employees.12 However, they

11
There may be additional relevant cases, but the plaintiffs
have not cited them nor have we been provided with translations.
12
There was a factual dispute at trial over the implications
of the Ranger bylaws. "When, as here, the defendants appeal from
a denial of qualified immunity after a jury verdict has been
rendered, the evidence is construed in the light most hospitable to

- 20 -
were also indisputably transitory employees whose term had expired

when they were discharged. Thus, their circumstances could be

analogized either to Lupiáñez or Correa. We are unable to say that

one case or the other clearly governs. Qualified immunity,

therefore, shielded the defendants from the due process claims of

the plaintiffs.13

IV.

Although the defendants do not contest on appeal the

jury's award of damages (thereby relying for success on their

challenges to liability), we must say a few words about the damages

awards to avoid any misunderstanding about the effect of our

liability determinations on those awards. First, we note that the

district court did not have to award $1.00 in nominal damages to

validate the jury's award of punitive damages for the violation of

the party that prevailed at trial, and deference is accorded the
jury's discernible resolution of disputed factual issues."
Guillemard-Ginorio, 585 F.3d at 525 (internal quotation marks and
citation omitted). We therefore read the cadet bylaws to support
the proposition that the cadets would become Rangers so long as
their training was successfully completed.
13
The defendants also argue that they were entitled to
qualified immunity from suit on the political discrimination claim.
They provide no support for that argument, beyond the claim that
the evidence was "insufficient to establish Plaintiffs' prima facie
case." Having determined that the jury reasonably found that
Salas-Quintana and Cabezudo were motivated by political animus when
they fired the cadets, we need not tarry long over this claim.
"[I]t is clearly established, and was at the time of the events in
question, that terminating a non-policy-making employee based on
political affiliation violates the First Amendment." Costa-Urena,
590 F.3d at 21.

- 21 -
the First Amendment rights of seven of the plaintiffs. We have

recently determined that in a section 1983 action, a jury may

properly award punitive damages even if it awards no nominal or

compensatory damages. De Jesús Nazario v. Morris Rodríguez, 554

F.3d 196, 205 (1st Cir. 2009).14 Nevertheless, as noted, the

nominal damages award for the First Amendment violations are

unchallenged and we see no reason to disturb them.15

Second, because of our conclusion that the defendants

were entitled to qualified immunity on the due process claims, we

14
The district court did not have the benefit of our recent
decision in De Jesús Nazario, in which we held definitively that
our earlier holding in Kerr-Selgas v. American Airlines, 69 F.3d
1205 (1st Cir. 1995), on which the district court relied, did not
apply to section 1983 actions. De Jesús Nazario, 554 F.3d at 205.
15
Nominal damages are available in a § 1983 action for the
violation of a procedural due process right even without a
corollary finding of injury or an award of compensatory damages.
Carey v. Piphus, 435 U.S. 247, 266 (1978). Several circuits have
held that, "although the Supreme Court's decision in Carey involved
nominal damages after a procedural due process violation, nominal
damages are similarly appropriate in the context of a First
Amendment violation." KH Outdoor, LLC v. City of Trussville, 465
F.3d 1256, 1261 (11th Cir. 2006); see also Familias Unidas v.
Briscoe, 619 F.2d 391, 402 (5th Cir. 1980) (nominal damages for
violation of First Amendment rights); Draper v. Combs, 792 F.2d
915, 921-22 (9th Cir. 1986) (nominal damages for violation of
either procedural or substantive constitutional right); Risdal v.
Halford, 209 F.3d 1071, 1072 (8th Cir. 2000) (nominal damages for
First Amendment rights). Given the absence of a challenge to the
nominal damages award, we see no need to address the merits of that
question here. Procedurally, if a jury in a case brought pursuant
to 42 U.S.C. § 1983 finds a violation of the plaintiff's
constitutional rights, but fails to award compensatory damages, a
plaintiff "may ask the trial court for nominal damages on the
occasion of, or immediately after, the return of the verdict."
Campos-Orrego v. Rivera, 175 F.3d 89, 98-99 (1st Cir. 1999). Such
a procedure was followed in this case.

- 22 -
must vacate the jury's award of compensatory damages to the twenty-

eight prevailing plaintiffs for the violation of their rights under

the due process clause.16 We affirm the award of punitive and

nominal damages to the seven plaintiffs whose First Amendment

rights were violated.17

V.

For the aforementioned reasons, we affirm the judgment of

the district court on the political discrimination claims, and the

award of nominal and punitive damages to the plaintiffs who

prevailed on their political discrimination claims. We vacate the

judgment on the due process claims of all plaintiffs and the award

16
Since the injury in this case for a due process violation
and a First Amendment violation would seem to be the same - the
loss of a job - it does seem odd that the jury awarded compensatory
damages on the due process claim but not on the First Amendment
claim. The district court speculated that the jury might have
chosen that outcome because of the court's admonition in its
instructions that the jury could not award double damages for the
same injury. With a properly structured verdict form, the jury
might have been able to indicate an award of compensatory damages
for the First Amendment claim and the due process claim without
violating the rule on double damages. However, such a verdict form
was not submitted to the jury.
17
The requirement for an award of punitive damages in an
action pursuant to § 1983 is rigorous. See Méndez-Matos v.
Municipality of Guaynabo, 557 F.3d 36, 48 (1st Cir. 2009) (holding
punitive damages cannot be assessed in an action under § 1983
unless the plaintiff proves that the "defendant 'discriminate[d] in
the face of a perceived risk that its actions [would] violate
federal law'") (quoting Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
536 (1999)). As noted, however, the appellants did not argue on
appeal that this requirement was not met.

- 23 -
of compensatory damages based on the due process claims. Each side

shall bear its own costs on this appeal.

So Ordered.

- 24 -