October 20, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1529
WALTER TORRES MALDONADO, ET AL.,
Plaintiffs, Appellees,
v.
JOSE CEDENO MALDONADO, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Ortiz Ballester & Pagan on brief for appellants.
Carlos A. Del Valle Cruz on brief for appellees.
Per Curiam. Several transitory employees filed the
present 1983 action claiming their contracts were not
renewed for politically discriminatory reasons in violation
of their First Amendment rights. Contending that Orta v.
Padilla Ayala, 92 JTS 96 (1992), established that the
contracts of transitory employees properly may not be renewed
even for politically discriminatory reasons without violating
any law, defendants moved for summary judgment on qualified
immunity grounds. The district court rejected defendants'
reading of the Orta decision and, citing Cheveras Pacheco v.
Rivera Gonzalez, 809 F.2d 125 (1st Cir. 1987), where this
court, in rejecting a qualified immunity defense, concluded
that a transitory employee was protected within the confines
of the Branti-Elrod line of cases from a politically based
non-renewal, denied defendants' motion for summary judgment.
Defendants have now appealed.
It is important to note that, unlike the situation
in Orta, the plaintiffs have not asserted any property rights
in their transitory positions. Rather, their position is
that even if they have no property interest under Puerto Rico
law in continued employment after the expiration of their
contracts, nevertheless defendants may not constitutionally
refuse to renew their transitory appointments because of
plaintiffs' political affiliation unless political
affiliation is an appropriate job requirement. Plaintiffs
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are correct for the reasons we explained in Cheveras Pacheco
v. Rivera Gonzalez, 809 F.2d 125, 127-28 (1st Cir. 1987). As
the Otra decision did not expressly address any First
Amendment claim under the Elrod-Branti line of cases, we do
not agree with defendants' reading of that decision. In any
event, however, federal law governs whether an employee
enjoys First Amendment protection from a politically based
adverse employment action. See Mariani-Giron v. Acevedo-
Ruiz, 877 F.2d 1114, 1119 n. 7 (1st Cir. 1989); Santiago-
Negron v. Castro-Davila, 865 F.2d 431, 436 (1st Cir. 1989);
De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1195 (1st Cir.
1986).
Defendants' attempt to distinguish Cheveras Pacheco
on the length of transitory employment--28 months in the
present case; almost six years in Cheveras Pacheco--is
meritless. As we stated in Figueroa v. Aponte-Roque, 864
F.2d 947, 951 & n. 7 (1st Cir. 1989), "transitory employees
are protected from politically motivated non-renewals
regardless of the number of years they have served. . . .
Although "a long-tenured `temporary' employee `particularly'
enjoys the protections established in Elrod and Branti, a
one-term employee also is protected from political
discharge."
Appellees have moved for sanctions under Fed. R.
App. P. 38. We agree with appellees that this appeal is on
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the verge of frivolous. Its outcome was controlled by
settled law explained in the district court's opinion, and
appellants have failed to articulate any reasonable ground
for appeal. We thus will impose double costs under Fed.
R. App. P. 38.
The order denying summary judgment is summarily
affirmed. Loc. R. 27.1. Appellants' motion to strike
appellees' request for sanctions is denied. Double costs are
awarded under Fed. R. App. P. 38.
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