Santana v. Calderon

United States Court of Appeals
For the First Circuit
Nos. 02-1436
02-1437
02-1438

JANET SANTANA; ESTEBAN PÉREZ;
CONJUGAL PARTNERSHIP PÉREZ-SANTANA,

Plaintiffs, Appellees,

v.

SILA M. CALDERÓN, individually and as Governor of Puerto Rico;
XAVIER GONZÁLES-CALDERÓN; VÍCTOR RIVERA, individually
and as Secretary of Labor & Human Resources of Puerto Rico,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

Before

Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.

Irene S. Soroeta-Kodesh, Assistant Solicitor General, Puerto
Rico Department of Justice, with whom Roberto J. Sánches Ramos,
Solicitor General, and Vanessa Lugo Flores, Deputy Solicitor
General, were on brief, for appellants Calderón and González-
Calderón.
Celina Romany, with whom Juan M. Frontera Suau was on brief,
for appellant Rivera.
Joan Schlump Peters, with whom Andrés Guillemard-Noble and
Monique Guillemard-Noble were on brief, for appellees.

August 26, 2003
 LIPEZ, Circuit Judge. This case comes to us on an

interlocutory appeal and requires us to determine whether the

defendants, Sila M. Calderón ("Calderón"), Governor of Puerto Rico,

Xavier González-Calderón, current Executive Director of the Human

Resources and Occupational Development Council, and Víctor Rivera,

Secretary of Labor and Human Resources of Puerto Rico,

(collectively "defendants"),1 are entitled to qualified immunity in

a case brought by Plaintiffs Janet Santana ("Santana"), former

Executive Director of the HRODC, and her husband, Esteban Pérez.2

Santana sued the defendants under 42 U.S.C. § 1983 and the

corresponding laws of the Commonwealth of Puerto Rico, seeking

injunctive relief and compensatory and punitive damages. The

complaint alleged (1) that defendants violated Santana's First

Amendment rights by politically discriminating against her and

creating a hostile work environment which culminated in her

dismissal from her position as Executive Director of the Human

Resources and Occupational Development Council ("HRODC"); (2) that

the defendants conspired to remove her from her position as

1
Defendants Calderón and Rivera were sued in both their
individual and official capacities. However, because the only
issue before us on interlocutory appeal is that of qualified
immunity, we address the defendants only in their individual
capacities. Brandon v. Holt, 469 U.S. 464, 472-73 (1985) (holding
that an official sued in his official capacity may not take
advantage of a qualified immunity defense).
2
Because the claims brought by Santana's husband are
derivative of Santana's claim, we designate Santana the "plaintiff"
and refer to the co-plaintiff by name where necessary.

-2-
Executive Director of the HRODC based solely on her political

affiliation; and (3) that her dismissal violated her Fourteenth

Amendment due process rights because she had a property interest in

her position. On defendants' motion to dismiss, the district court

granted the defendants qualified immunity on the political

discrimination claim, but denied qualified immunity on the

Fourteenth Amendment due process claim. The defendants appealed

this denial of qualified immunity. We conclude that the district

court erred in rejecting the claim of defendants to qualified

immunity on the due process claim of plaintiffs.

I.

In 1998, the United States Congress passed the Workforce

Investment Act (WIA), 29 U.S.C. §§ 2801-2945 (2003), to

provide workforce investment activities,
through statewide and local workforce
investment systems, that increase the
employment, retention, and earnings of
participants, and increase occupational skill
attainment by participants, and, as a result,
improve the quality of the workforce, reduce
welfare dependency, and enhance the
productivity and competitiveness of the
Nation.

29 U.S.C. § 2811. To be eligible to receive federal funds under

the WIA, a state must submit a State Plan outlining a five-year

strategy for the statewide workforce investment system. The WIA

requires the Governor of each state to establish a state Workforce

Investment Board (WIB) to assist in the development of the State

-3-
Plan. The WIB consists of the Governor, two members of each

chamber of the State legislature, and representatives appointed by

the Governor, including representatives of business, chief elected

officials of municipal and county governments, representatives of

labor unions, individuals or representatives of organizations that

have experience with youth activities and education, and State

agency officials with responsibility for related programs and

activities. 29 U.S.C. §§ 2821-2822.

To assist him in fulfilling his duties under the WIA, the

former Governor, Pedro Rosselló, designated the HRODC by executive

order as the depository and administrator of the funds that Puerto

Rico received pursuant to the WIA. The HRODC is an agency attached

to the Department of Labor and Human Resources of the Commonwealth

of Puerto Rico, created pursuant to 18 P.R. Laws Ann. § 1584 (2002)

to be the governing body of the Occupational and Human Resources

Development System: a "conglomerate of agencies, programs or

operating units that, directly or indirectly, offer services

related to non-university technological-occupational education."

18 P.R. Laws Ann. § 1581 (2002). The HRODC "shall retain the

counseling, coordination, and establishment of public policy

functions and shall be the regulatory and supervisory entity of the

[] system." 18 P.R. Laws Ann. § 1584. The HRODC is composed of

the Secretary of Education, the Secretary of the Department of

Family, the Secretary of Economic Development, the Secretary of

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Labor, three representatives from the private sector, and three

representatives of the public interest. 18 P.R. Laws Ann. § 1584.

The HRODC is responsible for, inter alia, developing and

implementing public policy with respect to occupational education,

administering a $300 million dollar annual budget comprised of

federal funds disbursed under the WIA, evaluating and approving

requests for such funds, evaluating and auditing programs and

services receiving such funds, and submitting periodic reports to

the Governor and the legislature regarding the achievement of the

objectives and purposes of the WIA. 18 P.R. Laws Ann. § 1585

(2002). The Executive Director of the HRODC "shall direct the

administrative and operating functions of the Council," 18 P.R.

Laws Ann. § 1584, and, according to the Governor's Executive Order,

"shall be responsible and accountable to the [WIB] for the receipt,

custody and disbursement of the federal funds received pursuant to

the WIA."

A. Santana's Employment

Santana began working as a public servant in 1994 at the

Puerto Rico Department of Education. From January 1997 until July

2000, she worked in the Office of the Governor as Advisor to the

Governor on Federal Affairs. In May 2000, Santana was appointed as

a member of the WIB, a position she still holds. In July 2000,

Santana was appointed by then-Governor Rosselló as Executive

Director of the HRODC and was confirmed by the Senate of Puerto

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Rico for a four-year term which was to expire in July 2004. In

November 2000, defendant Calderón was elected Governor of the

Commonwealth of Puerto Rico, and in January 2001, she took office.3

Calderón appointed co-defendant Rivera as the Secretary of Labor

and Human Resources. Co-defendant González-Calderón had been the

Regional Director of the Carolina-Trujillo Alto Consortium of the

WIB. After Governor Calderón won the gubernatorial election, she

appointed González-Calderón Auxiliary Secretary of Planning and

Special Assistant of Federal Affairs for the WIB.

In her complaint Santana alleges that after the elections

and Rivera's appointment as Secretary of Labor and Human Resources,

she was subjected to "an intense persecution and harassment

campaign for her political affiliation as member of the NPP."4

Santana v. Calderón, No. 01-1576, slip op. at 5 (D.P.R. Feb. 15,

2002) (order on defendants' motion to dismiss). Among other

things, she received anonymous insulting letters and harassing

telephone calls, and career position employees at the HRODC made

frequent remarks about Santana's imminent dismissal. The

3
Both Santana and former Governor Rosselló are members of
the New Progressive Party (NPP). Governor Calderón is a member of
the Popular Democratic Party (PDP).
4
Because the qualified immunity issue before us does not
involve Santana's claim that the defendants politically
discriminated against her and created a hostile work environment
which culminated in her dismissal from her position as Executive
Director of the HRODC, we recite the facts specific to this claim
only to provide context for Santana's due process claim.

-6-
harassment reached its climax on February 26, 2001, when Santana

received a voodoo doll covered in pins and a copy of her signature

pinned to the doll's chest. On March 9, 2001, a group of six

people consisting largely of employees of the Department of Labor

and Human Resources went to Santana's office and gave Santana a

letter dated March 7, 2001 signed by Governor Calderón, ordering

the immediate termination of her employment as Executive Director

of the HRODC. Santana was given fifteen minutes to vacate her

office and one member of the group immediately began changing the

locks. While Santana was clearing her office, a reporter from a

radio station came to interview her. Although the employees from

the Department of Labor tried to impede his access, Santana was

able to speak to the reporter. Later the same day, defendant

Rivera made several declarations to the press stating the alleged

reasons for Santana's dismissal, which Santana claims are "untrue

and defamatory." Santana, No. 01-1576, slip op. at 10. Santana

was not given prior notice of her termination or an opportunity to

defend herself from the alleged grounds for her termination.

Defendant González-Calderón was appointed Executive Director of the

HRODC in place of Santana and currently holds the position.

B. Procedural Posture

On December 17, 2001, Santana filed a second amended

complaint in the United States District Court for the District of

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Puerto Rico seeking injunctive relief5 as well as compensatory and

punitive damages under 42 U.S.C. §§ 1983, 1985(3), and

corresponding laws of Puerto Rico, for assorted violations of her

rights. On December 21, 2001, the defendants filed a Rule 12(b)(6)

motion to dismiss the amended complaint on the following grounds:

(1) Santana's position as Executive Director of the HRODC is a

trust position and therefore political affiliation is a justifiable

ground for dismissal in the interest of public policy; (2) Santana

did not have a property interest in her position and, thus, could

not have been deprived of her right to due process under the

Fourteenth Amendment; and (3) defendants in their individual

capacities are entitled to qualified immunity.6

The district court found that

there can be little doubt that the HRODC helps
shape Commonwealth policy. However, the Court
cannot see, at this point in the litigation,

5
In her complaint, Santana claims she is entitled to
"complete restitution of her position with salary, duties,
responsibilities of said position . . . . Plaintiff is also
entitled to injunctive relief enjoining defendants from further
discrimination against her because of her political beliefs and
association now and in the future."
6
The defendants also claimed that Santana has not
demonstrated that defendant González-Calderón had any personal
involvement in the alleged violations; that the allegations fail to
state a claim for conspiracy under either § 1983 or § 1985(3); and
that Plaintiff Esteban Pérez lacks standing to bring suit. The
district court denied defendants' motions on all these grounds with
one exception: the district court granted defendants' motion to
dismiss Santana's claim of conspiracy under § 1985(3) (but denied
the motion to dismiss the claim of conspiracy under § 1983).
Santana, No. 01-1576, slip op. at 42.

-8-
 how the position of Executive Director is a
"political" one . . . . For this reason, the
Court denies Defendants' claims that the
position of Executive Director of the HRODC is
a political or trust position thus preventing
Plaintiffs to state a claim for political
discrimination.

Santana, No. 01-1576, slip op. at 25-26. The district court also

found that the statute establishing the position of Executive

Director of the HRODC provides for a minimum term of four years,

thus endowing Santana with a property interest in the position.

For this reason, the district court denied the defendants' motion

to dismiss Santana's Fourteenth Amendment due process claims.

Finally, the district court granted defendants' motion to dismiss

Santana's claims of political discrimination against the

Commonwealth officials personally on the basis of qualified

immunity, but denied the defendants qualified immunity on Santana's

due process claims. The defendants' interlocutory appeal

challenges this latter ruling.

II.

"Qualified immunity specially protects public officials

from the specter of damages liability for judgment calls made in a

legally uncertain environment." Ryder v. United States, 515 U.S.

177, 185 (1995). The shield provided by the qualified immunity

doctrine is "an immunity from suit rather than a mere defense to

liability." Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quoting

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)) (emphasis in

-9-
original). Thus, the defendants are entitled to challenge the

district court's order denying qualified immunity on an

interlocutory appeal, Mitchell, 472 U.S. at 530, at least "to the

extent that the qualified immunity defense turns upon a 'purely

legal' question." Fletcher v. Town of Clinton, 196 F.3d 41, 45

(1st Cir. 1999). In such an instance, we review the issue of

qualified immunity de novo. Suboh v. Dist. Attorney's Office, 298

F.3d 81, 90 (1st Cir. 2002).

III.

The defendants are entitled to qualified immunity unless

(1) the facts alleged show the defendants' conduct violated a

constitutional right, and (2) the contours of this right are

"clearly established" under then-existing law so that a reasonable

officer would have known that his conduct was unlawful. Dwan v.

City of Boston, 329 F.3d 275, 278 (1st Cir. 2003) (citing Saucier

533 U.S. at 201). Saucier instructs that the reviewing court

should begin with the former question. "A court required to rule

upon the qualified immunity issue must consider, then, this

threshold question: Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer's

conduct violated a constitutional right? This must be the initial

inquiry." Saucier at 201. Thus, we approach the qualified

immunity inquiry sequentially.

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A. Did the conduct alleged violate Santana's constitutional right?

Santana asserts that the defendants violated her

Fourteenth Amendment right to due process when they terminated her

employment without affording her a pre-termination hearing. This

claim rests on the proposition that Santana possessed a property

interest in her employment as Executive Director of the HRODC.

Under the Fourteenth Amendment, a state is prohibited from

discharging a public employee who possesses a property interest in

continued employment without due process of law. Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (holding that a

public employee classified as a "civil servant" under Ohio law has

a property interest in continued employment, of which the State

cannot deprive him without due process). However, the Constitution

does not create property interests; instead, "they are created and

their dimensions are defined by existing rules or understandings

that stem from an independent source such as state law." Bd. of

Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972); see also

Ortiz-Piñero v. Rivera-Arroyo, 84 F.3d 7, 17 (1st Cir. 1996). In

order to establish a constitutionally-protected property interest,

a plaintiff must demonstrate that she has a legally recognized

expectation that she will retain her position. A legitimate

expectation of continued employment may derive from a statute, a

contract provision, or an officially sanctioned rule of the

workplace. Perry v. Sindermann, 408 U.S. 593, 601-02 (1972).

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Santana's expectation of continued employment is constrained by two

sources: the enabling statute creating the position of Executive

Director of the HRODC, and the Governor's power of removal under

the Constitution of Puerto Rico. We address these in turn.

1. The Enabling Statute

The position of Executive Director of the HRODC is

statutorily created. The relevant statute provides:

The Governor shall appoint an Executive
Director with the advice and consent of the
Senate for a term of four (4) years and until
his/her successor is appointed and takes
office, who shall direct the administrative
and operating functions of the Council.

18 P.R. Laws Ann. § 1584 (emphasis added). The district court

compared this language of the statute with the language describing

the appointment of some of the members of the HRODC. Section 1584

goes on to provide that certain members of the Council "shall be

appointed for a term of five (5) years each and shall hold office

until the expiration of their respective appointments, or until

their successors are appointed and take office." Id. (emphasis

added). The district court ascribed great significance to the use

of the word "or" in the description of the Council members

appointments, versus the use of the word "and" in the description

of the Executive Director's appointment. The district court

reasoned:

[T]he board members are appointed to a term
that will last for five years or until someone
has been appointed to and subsequently does

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 actually replace them. Therefore the word
"or" signifies that this position can be held
for a term no longer than five years and
potentially shorter dependant upon the
Governor's desire. The Executive Director,
however, is appointed to a term that will last
for four years and until someone has been
appointed to and subsequently does actually
replace him or her. Therefor, [sic] the word
"and" signifies that this position will be
held for a term of at least four years if not
longer, dependant upon the Governor's desire.

Santana, No. 01-1576, slip op. at 29 (emphasis in original). Based

on the difference between "and" and "or," the district court

determined that the Executive Director was to serve for a minimum

of four years. The district court found support for this statutory

interpretation in its prior determination, in the context of the

political discrimination claim, that the council members of the

HRODC are engaged in shaping public policy whereas the Executive

Director is merely an executive and administrative position. Thus,

as political positions, the council members would be removable

before the conclusion of their term of appointment, whereas the

Executive Director is guaranteed a term of four years. Relying on

its own decision in Quiles Rodriguez v. Calderón, 172 F.Supp.2d

334, 342 (D.P.R. 2001),7 the district court determined that "the

7
In Quiles the district court held that the Chair of the
Public Service Commission, an employee appointed by the Governor to
a term position, cannot be terminated at the will of the Governor
before the end of his term. The relevant statute in Quiles
provides that "the Commissioners first appointed [by the Governor]
shall hold office for terms of two, three, and four years,
respectively. The term for each one shall be fixed by the
Governor, but their successors shall be appointed for a term of

-13-
Governor did not have the automatic right to remove someone from a

term position absent a clear delegation of removal authority stated

explicitly in the statute." Santana, No. 01-1576, slip op. at 31

(citing Quiles, 172 F.Supp.2d at 343). Therefore, the court

concluded that Santana had a property interest in her continued

employment for the duration of the four-year term.

The district court's interpretation of the statute draws

large conclusions from a subtle deviation in the statute's

language. We question whether these subtleties can bear such

weight. The Governor of Puerto Rico has a general power of removal

that is statutorily derived. "The Governor shall have power to

remove any officer whom he may appoint, except officers whose

removal is otherwise provided for by the Constitution, and he may

declare the office vacant and fill the same in the manner provided

by law." 3 P.R. Laws Ann. § 6 (2002). The language "in the manner

provided by law" indicates that the legislature may specify how an

officer appointed by the Governor is to be removed. However, this

language seems to contemplate an explicit statutory statement from

the legislature on this issue. If the legislature is going to

circumscribe the Governor's general power of removal, it arguably

must do so with greater clarity and explicitness than the language

four years." Quiles, 172 F.Supp.2d at 339-40. It is important for
the "clearly established" prong of the qualified immunity analysis
to note that Quiles was decided on November 7, 2001, after
Santana's dismissal from her job in this case.

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found in the statute providing for the appointment of the Executive

Director of the HRODC.

In fact, there are many examples of the legislature

speaking with clarity to limit the Governor's power of removal in

the context of other statutorily-created positions involving

gubernatorial appointments. See, e.g. 23 P.R. Laws Ann. § 62e

(2002) ("The Governor may remove any member [of the Puerto Rico

Planning Board] for good cause upon due notice and hearing."); 29

P.R. Laws Ann. § 64 (2002) ("The Governor may remove any member of

the [Labor Relations] Board, upon notice and hearing, for

negligence or malfeasance in the performance of his duties"); 1

P.R. Laws Ann. § 252 ("The Governor may remove any member of the

Food and Nutrition Commission from office for negligence in the

performance of his/her duties, conviction of a felony or

misdemeanor that implies moral turpitude, and mental disability

decreed by a court.").

Hence, solely as a matter of statutory interpretation,

there are good reasons to question whether the Puerto Rico

legislature provided Santana with a property interest in her job.

However, even if we assumed that in drafting 18 P.R. Laws Ann. §

1584 the legislature intended to limit the Governor's power to

remove the Executive Director at will, the issue of whether Santana

has a constitutionally-protected property interest would not be

resolved. At oral argument, Santana sensibly conceded that if the

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Executive Director position is subject to the Governor's

constitutional power of removal, the legislature's attempt to

insulate the position from removal at the will of the Governor

would offend the principle of separation of powers imbedded in the

Puerto Rico constitution. Thus, we must consider the scope of the

Governor's constitutional power of removal.

2. The Governor's Constitutional Power of Removal

The Governor's removal power is implicit in Article IV,

§ 4 of the Constitution of Puerto Rico.8 However, the Puerto Rico

Supreme Court has not yet spoken on the scope of the Governor's

power of removal under the Constitution. Nonetheless, both parties

posit that the Governor's power of removal is analogous to the

President's power under federal law. In Quiles Rodriguez, the

district court emphasized this analogy:

[U]nder the Puerto Rico Constitution, the
authority of the Governor to carry out
appointments is analogous to that of the
President of the United States. In addition,
it is well established that the executive
function of appointing functionaries was
incorporated in to the Puerto Rican
Constitution via federal statute, case law,

8
Article IV, § 4 provides in relevant part:

The Governor shall execute the laws and cause them to be
executed.

* * *

He shall appoint, in the manner prescribed by this
Constitution or by law, all officers whose appointment he
is authorized to make.

-16-
 and doctrine, so it is not uncommon that the
Court look to federal case law in its effort
to interpret the law and the Constitution to
resolve this debate.

Quiles Rodriguez, 172 F.Supp.2d at 342 (citing Opinion of the

Secretary of Justice, Op. Sec. Just. No.3 of 1995; Op. Sec. Just.

No.25 of 1967). Thus, following the lead of the district court, we

examine the executive power of removal under the United States

Constitution.

Article II of the United States Constitution grants the

President the power to nominate and, with the advice and consent of

the Senate, to appoint officers of the United States. U.S. Const.

art. II, § 2, cl. 2. Although the Constitution is silent as to the

President's removal power, it is well-established that "in the

absence of any specific provision to the contrary, the power of

appointment to executive office carries with it, as a necessary

incident, the power of removal." Myers v. United States, 272 U.S.

52, 126 (1926). This implicit constitutional power to remove

executive officers derives from the President's obligation under

Article II, § 3 to assure that the laws are faithfully executed.

Id.

The scope of the President's power of removal developed

in a trilogy of cases: (1) Myers, (2) Humphrey's Executor v. United

States, 295 U.S. 602 (1935), and (3) Wiener v. United States, 357

U.S. 349 (1958). The Supreme Court more recently refined its

-17-
jurisprudence on this issue in Morrison v. Olson, 487 U.S. 654

(1988).

In Myers, the Supreme Court considered the validity of a

federal statute providing that postmasters could be removed by the

President only "by and with the advice and consent of the Senate,"

but that until so removed, they could hold office for four years.

Concluding that Congress could not limit the President's power to

remove an executive official, the Court held that the statutory

restrictions limiting the President's power to remove officers he

had appointed were unconstitutional. Myers, 272 U.S. at 176

("[T]he Tenure of Office Act of 1867, in so far as it attempted to

prevent the President from removing executive officers who had been

appointed by him by and with the advice and consent of the Senate,

was invalid, and [] subsequent legislation of the same effect was

equally so.")

The Court limited its expansive holding in Myers in

Humphrey's Executor. In Humphrey's, the President removed Humphrey

from his position as a member of the Federal Trade Commission (FTC)

for political reasons, rather than for reasons provided for by the

FTC Act. The FTC Act gave the members of the FTC a seven-year term

and provided that the President could remove any commissioner for

"inefficiency, neglect of duty, or malfeasance in office."

Humphrey's 295 U.S. at 623. The Court examined the nature and

functions of the FTC and determined that its duties were

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predominantly quasi-judicial and quasi-legislative. The Court

confined the President's absolute power of removal to purely

executive officers and determined that Congress may limit the

removal power of the President with respect to officers performing

quasi-judicial or quasi-legislative functions. Id. at 624-28.

The Supreme Court further developed this distinction

between purely executive officers and those that perform quasi-

judicial or quasi-legislative functions in Wiener, a case involving

the President's dismissal of a previous President's appointee to

the War Claims Commission because the President wanted to replace

him with his own appointee. The relevant statute provided that the

Commissioner's term was to expire with the life of the Commission

but was silent with regards to removal. Thus, the statute placed

no express restriction on the President's removal power. However,

the Supreme Court determined that "[t]he Commission was established

as an adjudicating body with all the paraphernalia by which legal

claims are put to the test of proof," Wiener, 357 U.S. at 354, and,

because the Commission performed such a quasi-judicial function,

that the President's removal of the Commissioner was invalid, id.

at 356. As the Supreme Court put it:

Judging the matter in all the nakedness in
which it is presented, namely, the claim that
the President could remove a member of an
adjudicatory body like the War Claims
Commission merely because he wanted his own
appointees on such a Commission, we are
compelled to conclude that no such power is
given to the President directly by the

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 Constitution, and none is impliedly conferred
upon him by statute simply because Congress
said nothing about it. The philosophy of
Humphrey's Executor, in its explicit language
as well as its implications, precludes such a
claim.

Id.

The Supreme Court reevaluated the President's power of

removal in Morrison v. Olson, while upholding the constitutionality

of the Independent Counsel Act. The Act created an Independent

Counsel to investigate and prosecute certain cases in which

officials within the executive branch were involved, and provided

that the Attorney General could only remove the Independent Counsel

for cause. The Supreme Court stated that its removal jurisprudence

is designed "to ensure that Congress does not interfere with the

President's exercise of the 'executive power' and his

constitutionally appointed duty to 'take care that the laws be

faithfully executed' under Article II." Morrison, 487 U.S. at 689-

90. The Court noted that, while the Humphrey's/Wiener test, based

on an analysis of the functions served by the official, is still

relevant, it is not determinative. "[T]he real question is whether

the removal restrictions are of such a nature that they impede the

President's ability to perform his constitutional duty, and the

functions of the officials in question must be analyzed in that

light." Id. at 691. Thus, under Morrison, "purely executive"

officers are subject to the President's power to remove them at

will if that removal power implicates the President's power to

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perform his constitutional duty to assure that the laws are

faithfully executed.

These Supreme Court cases suggest that the question of

the Governor's power to remove the Executive Director at will

distills to (a) whether the Executive Director of the HRODC is a

purely executive position that (b) entails policymaking or

administrative authority such that (c) the Governor's obligation to

execute the laws would be hindered by her inability to control the

occupant of the position.

Respectfully, the district court's various conclusions

concerning the extent to which the position of Executive Director

is a policymaking position point in different directions. First,

in rejecting defendants' motion to dismiss the political

discrimination claim on the ground that the Executive Director was

a "political position," the district court concluded that "there

can be little to no doubt that the HRODC helps shape Commonwealth

policy. However, the Court cannot see, at this point in the

litigation, how the position of Executive Director is a 'political'

one." Santana, No. 01-1576, slip op. at 25-26. Subsequently, in

granting the defendants qualified immunity from the political

discrimination claim, the court stated that its conclusion that the

position was not a "political" one

does not mean that the position did not entail
at least a "modicum of policy making," or
provide the holder with access to confidential
documents . . . . More importantly, the law is

-21-
 not so clearly established that someone in
Defendants' position would not believe that
the Executive Director's position was a
"trust" or "political" position, thus evoking
the protections of qualified immunity.

Id. at 38. By contrast, in denying qualified immunity on the due

process claim, the court failed to similarly consider whether

someone in defendants' positions would believe that the Executive

Director's position was a "political" position subject to

termination at the will of the Governor, and therefore not a

constitutionally-protected property interest.

In terms of the Morrison test, the position of Executive

Director of the HRODC seems purely executive in the sense that it

involves no quasi-judicial or quasi-legislative functions. The

HRODC is an agency of the Department of Labor and Human Resources,

and the position of Executive Director was created to "direct the

administrative and operating functions" of the HRODC. 18 P.R. Laws

Ann. § 1584. The Executive Director is appointed by the Governor.

It is not a "career" position under the Puerto Rico Public Service

Personnel Act.9 3 P.R. Laws Ann. § 1301 (2002). Therefore, the

Executive Director does not enjoy the statutory protections

afforded to career civil servants. The Governor determines the

Executive Director's remuneration.

9
Career positions are those filled according to competition
with other candidates for the position and performance on a civil
service exam. The candidates are drawn from a formal registry of
eligible candidates. 3 P.R. Laws Ann. § 1333 (2002).

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 As Executive Director, Santana received proposals from

each of the fifteen regional boards of the "occupational and human

resources development system" and reviewed each proposal to ensure

that it complied with the Puerto Rico WIB's five-year State Plan

for workforce investment. Once she reviewed a proposal she would

submit it to the Puerto Rico WIB for approval. The Executive

Director is also responsible for reviewing each regional board's

application for funds and auditing the regional boards for

accountability and compliance with federal and Commonwealth

regulations. The Executive Director monitored technical assistance

to regional boards, monitored various federal funds allocated to

the Department of Education and the Family, and was responsible for

training the regional boards on administrative and management

issues in compliance with federal and Commonwealth regulations.

Santana, No. 01-1576, slip op. at 3-4.

While many of these duties are primarily administrative,

the control over allocation of substantial federal funds and the

power to review the regional board's proposals for workplace

investment involve policymaking on issues of fundamental concern to

the Governor: economic development, job creation and job training.

Moreover, the Executive Director's responsibility for the receipt,

custody and disbursement of the federal funds pursuant to the WIA,

and her duty to audit the regional boards for accountability and

compliance with federal and Commonwealth regulations, make the

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position important to the Governor's constitutional obligation to

faithfully execute the laws in these areas of central concern.

Importantly, the statute establishing the Executive

Director position is distinguishable from the statute at issue in

Morrison. In Morrison, the statute establishing the Independent

Counsel provided for termination for "good cause." As the Supreme

Court noted:

This is not a case in which the power to
remove an executive official has been
completely stripped from the President, thus
providing no means for the President to ensure
the "faithful execution" of the laws. Rather,
because the independent counsel may be
terminated for "good cause," the Executive,
through the Attorney General, retains ample
authority to assure that the counsel is
competently performing his or her statutory
responsibilities in a manner that comports
with the provisions of the Act.

Morrison, 487 U.S. at 692. By contrast, if the statute

establishing the Executive Director position is interpreted as

guaranteeing a four-year term, the Governor's power to assure that

the Executive Director is competently performing her

responsibilities is severely impaired. Hence, on the limited

record before us on interlocutory appeal, it appears that the

position of Executive Director of the HRODC may fall within the

Governor's constitutional power of removal under a Morrison-type

analysis. However, this is only reasoning by analogy. Only the

Supreme Court of Puerto Rico can provide the definitive answer on

the Governor's constitutional power of removal. The critical

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question here is whether our responsibility to decide the qualified

immunity issue before us requires that we decide a federal

constitutional right question that turns on an unsettled question

of Puerto Rican constitutional law.

B. Was Santana's property right clearly established?

The Supreme Court held in Saucier that "the requisites of

a qualified immunity defense must be considered in proper

sequence." Thus, the threshold question of whether "the facts

alleged show the [defendants'] conduct violated a constitutional

right . . . must be the initial inquiry. . . . The next sequential

step is to ask whether the right was clearly established."

Saucier, 533 U.S. at 201. The Supreme Court's "sequential rule" in

Saucier reflects a concern that if courts do not decide the

constitutional right in question, the law will never become clearly

established and guidelines for official conduct will not develop.

However, in this case, any ruling by us on the constitutional right

question would be premised on our best judgment about the

application of the separation of powers doctrine in the Puerto Rico

Constitution. The property right at the core of the federal

constitutional allegation is dependent on an unresolved issue of

Commonwealth constitutional law that can only be resolved

definitively by the Puerto Rico Supreme Court. Thus, the

sequential rule of Saucier may not contemplate a situation such as

this. See Campiti v. Matesanz, 333 F.3d 317, 321 (1st Cir. 2003)

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("Only as a last resort should the circuit courts read Supreme

Court decisions to create such mandatory priorities."); cf. Dirrane

v. Brookline Police Dept., 315 F.3d 65, 69-70 (1st Cir. 2002)

(noting that applying Saucier's sequential rule "is an

uncomfortable exercise where, as here, the answer whether there was

a violation may depend on a kaleidoscope of facts not yet fully

developed. It may be that Saucier was not strictly intended to

cover the latter case.").

Our primary responsibility in a case such as this is to

see that the federal law of qualified immunity is properly applied

without presuming to opine on sensitive matters of Commonwealth

constitutional law in a case where it is unnecessary to disposition

of the appeal, and in which our own prediction one way or the other

would not alter our analysis of or decision upon the federal issue.

The first step of the qualified immunity analysis -- whether

Santana has alleged a constitutional violation -- turns on whether

the Governor of Puerto Rico has the constitutional power to

terminate her employment at will, despite the statute stipulating

a four-year term for the position of Executive Director. Under

other circumstances, we might choose to certify this issue to the

Puerto Rico Supreme Court. At issue is a fundamental point of

Commonwealth constitutional law on which there is no precedent.

E.g. Wigginton v. Centracchio, 214 F.3d 1, 3-4 (1st Cir. 2000); see

also Arizonans for Official English v. Arizona, 520 U.S. 43, 77

-26-
(1997) ("Through certification of novel or unsettled questions of

state law for authoritative answers by a State's highest court, a

federal court may save time, energy, and resources and help build

a cooperative judicial federalism."). However, to certify at this

stage of the case would cause undue delay in both the resolution of

this interlocutory appeal and the progression of the case on the

merits. Moreover, due to the nature of the qualified immunity

analysis, such delay would be wholly unnecessary to the outcome of

this interlocutory appeal. Regardless of the Puerto Rico Supreme

Court's decision -- whether they determined that the Governor does

or does not have the power to remove the Executive Director of the

HRODC at will and, accordingly, whether Santana does or does not

have a property interest in her job -- we would grant the

defendants' qualified immunity on the ground that at the time that

Santana was fired, the constitutional right in question was not

clearly established and a reasonable government official could have

believed that her conduct in firing Santana was lawful. Thus, the

best way for us to reconcile our competing obligations of faithful

application of the federal law of qualified immunity and respect

for the primacy of the Supreme Court of Puerto Rico on issues

arising under the Puerto Rico Constitution, is to focus on the

second step of the qualified immunity analysis -- the clearly

established question.

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 "[Q]ualified immunity operates 'to ensure that before

they are subjected to suit, officers are on notice that their

conduct is unlawful.'" Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Saucier, 533 U.S. at 206). We cannot conclude that the

defendants had notice that their removal of the plaintiff from her

position would violate clearly established law. Given the purely

executive nature of the Executive Director position, the position's

limited policymaking function, and the Governor's general power of

removal, it was reasonable for the defendants to believe that

Santana did not have a property interest in continued employment

and that her termination therefore was not subject to

constitutional due process protection. Therefore, the defendants

are entitled to the protection of qualified immunity.10

IV.

For the reasons stated, we reverse the district court's

denial of qualified immunity on the ground that, at the time of the

defendants' conduct, the property right at issue was not clearly

10
In the district court, Santana invoked a liberty interest
as well as a property interest with her due process claim. The
district court declined to decide whether a liberty interest was
involved or address any consequent qualified immunity issue with
respect to it. Instead, it explained that by sustaining the
property based due process claim, it had "mooted" the liberty based
version. Neither side has seriously discussed the liberty based
claim on this appeal and we do not address it. To the extent that
Santana desired to pursue such a claim on remand, the defendants
are free to assert their qualified immunity defense and appeal if
it is rejected; but we will not anticipate issues that have not
been addressed by the district court or briefed by the parties.

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established under the law of Puerto Rico. Only the Supreme Court

of Puerto Rico can definitively resolve this property right issue.

Therefore, we urge the district court, as it proceeds with the suit

for injunctive relief and the other claims against the defendants,

to consult with the parties about the appropriateness of certifying

to the Puerto Rico Supreme Court the Commonwealth constitutional

issue relating to the removal power of the Governor.

The district court's order denying defendants qualified

immunity on Santana's due process claim is reversed.

So ordered.

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