UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1688
VICTOR SANTIAGO-MATEO, ET AL.,
Plaintiffs - Appellees,
v.
MIGUEL A. CORDERO, ET AL.,
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, Chief Judge,
Selya and Stahl, Circuit Judges.
Jorge Rodr guez-Micheo, with whom Benicio S nchez-La Costa
and Goldman Antonetti & C rdova were on brief for appellants.
Carlos A. del Valle-Cruz for appellees.
March 20, 1997
TORRUELLA, Chief Judge. Eight employees of the Puerto
TORRUELLA, Chief Judge.
Rico Electric Power Authority ("PREPA") filed a section 1983 suit
against PREPA and Miguel A. Cordero ("Cordero"), Executive
Director of PREPA. See 42 U.S.C. 1983. Plaintiffs-appellees
allege that they were demoted from their positions as area
engineers and assistant chief of supply, in violation of their
First Amendment right to freedom of association, because of their
political affiliation with the Popular Democratic Party (PDP).
In June 1994, defendants-appellants filed a motion for summary
judgment with respect to the seven plaintiffs who had been area
engineers. The motion for summary judgment was premised on two
different theories. First, it alleged that plaintiffs' First
Amendment claim is without merit because political affiliation is
an appropriate requirement for the position of area engineer.
Second, it argued that co-defendant Cordero is entitled to
qualified immunity. Defendants' motion for summary judgment was
denied by the district court on March 29, 1996. Defendants-
appellants now appeal with respect to co-defendant Cordero's
entitlement to summary judgment on qualified immunity grounds.
Finding that we lack jurisdiction, we dismiss the appeal.
Public officials alleged to have committed civil rights
violations are entitled to raise the defense of qualified
immunity. The defense is not available, however, if the
official's conduct violates a federal right that was clearly
established at the time of the infringement. See Harlow v.
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Fitzgerald, 457 U.S. 800, 818-19 (1982); Stella v. Kelley, 63
F.3d 71, 73 (1st Cir. 1995).
Because the doctrine of qualified immunity is intended
to shield government officials from trial as well as from damage
awards, the defense may be asserted in a pretrial motion and, if
that motion is rejected, immediate appellate review may be
available. See Siegert v. Gilley, 500 U.S. 226, 232 (1991);
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Guzm n-Rivera v.
Rivera-Cruz, 98 F.3d 664, 666-67 (1st Cir. 1996); Stella, 63 F.3d
at 73.
In Johnson v. Jones, U.S. , 115 S. Ct. 2151
(1995), the Supreme Court held that "a defendant, entitled to
invoke a qualified-immunity defense, may not appeal a district
court's summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a 'genuine' issue
of fact for trial." Id. at 2159. In Johnson, a plaintiff
brought suit against five police officers, claiming that they had
used excessive force in arresting him. The district court denied
a motion for summary judgment based on qualified immunity,
finding that there were issues of material fact sufficient to
defeat summary judgment. The Seventh Circuit held that it lacked
jurisdiction and dismissed the appeal. The Supreme Court granted
certiorari and held that no appellate jurisdiction exists where a
defendant appeals a denial of summary judgment based on the
grounds that there exist genuine issues of material fact. Id.
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This court dealt with a similar issue in Stella v.
Kelly. In Stella, former members of the Zoning Board of Appeals
for the Town of Tewksbury, Massachusetts, alleged that they had
been removed from the board as a result of votes they had cast
while on the board. Stella, 63 F.3d at 72-73. The complaint
consisted of two allegations -- first, that their firing was the
result of their voting patterns and, second, that this infringed
a constitutionally protected free speech right. Id. This court
noted that under Johnson:
a district court's pretrial rejection of
a proffered qualified immunity defense
remains immediately appealable as a
collateral order to the extent that it
turns on a pure issue of law . . . . On
the other hand, a district court's
pretrial rejection of a qualified
immunity defense is not immediately
appealable to the extent that it turns on
either an issue of fact or an issue
perceived by the district court to be an
issue of fact.
* * *
The bottom line, then, is simply this: a
summary judgment order which determines
that the pretrial record sets forth a
genuine issue of fact, as distinguished
from an order that determines whether
certain given facts demonstrate, under
clearly established law, a violation of
some federally protected right, is not
reviewable on demand.
Id. at 74.
The instant case is controlled by Johnson and Stella.
The district court's Order denying the summary judgment motion
reads, in part:
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Upon review of the parties' documents,
this Court finds that defendants are not
entitled to judgment as a matter of law.
Defendants have not been able to
establish the lack of a genuine issue of
material fact regarding their
discriminatory conduct towards plaintiffs
. . . . [T]his Court believes that
defendants' conduct towards plaintiffs,
if proven true, could constitute an
actionable claim under 1983.
Order of the District Court, March 29, 1996.
The Order leaves little doubt that the district court
determined that "the pretrial record set[] forth a genuine issue
of fact." Stella, 63 F.3d at 74. In light of Johnson and
Stella, the district court's finding that there exist issues of
material fact is sufficient for us to conclude that we lack
appellate jurisdiction.
For the foregoing reasons, we dismiss the appeal.
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