United States Court of Appeals
For the First Circuit
No. 02-2439
CLARIBEL RIVERA-JIMÉNEZ; ENRIQUE L. PIÑERO-SANTIAGO;
CONJUGAL PARTNERSHIP PIÑERO-RIVERA; ELISBEL MALDONADO-RIVERA;
VIVIAN ROSADO-SOTO; CONJUGAL PARTNERSHIP MALDONADO-ROSADO,
Plaintiffs, Appellees,
v.
PEDRO PIERLUISI, Secretary of Justice; LYDIA MORALES;
DOMINGO ALVAREZ, Individually and in his capacity as Director
of the Corruption and Organized Crime Investigations Division;
MIGUEL GIERBOLINI, Individually and in his capacity as
Sub-Director of the Special Investigations Bureau;
ISMAEL CASTRO, Individually and in his capacity as Interim
Director of the Division for the Investigation of Public
Officials involved in Organized Crime (SIFACO);
ERNESTO FERNÁNDEZ, Individually and in his capacity as Interim
Director of the Organized Crime Division,
Defendants, Appellants,
JOSÉ FUENTES-AGOSTINI, Individually and in his capacity as
Secretary of Justice of the Commonwealth of Puerto Rico;
ANÍBAL TORRES, Individually and in his capacity as Director of
Special Investigations Bureau; JOSÉ VÁZQUEZ-PÉREZ, Individually
and in his capacity as Assistant District Attorney for the
District of Carolina,
Defendants.
No. 02-2440
CLARIBEL RIVERA-JIMÉNEZ; ENRIQUE L. PIÑERO-SANTIAGO;
CONJUGAL PARTNERSHIP PIÑERO-RIVERA; ELISBEL MALDONADO-RIVERA;
VIVIAN ROSADO-SOTO; CONJUGAL PARTNERSHIP MALDONADO-ROSADO,
Plaintiffs, Appellees,
v.
JOSÉ FUENTES-AGOSTINI, Individually and in his capacity as
Secretary of Justice of the Commonwealth of Puerto Rico;
ANÍBAL TORRES, Individually and in his capacity as Director of
Special Investigations Bureau,
Defendants, Appellants,
PEDRO PIERLUISI, Secretary of Justice; LYDIA MORALES;
DOMINGO ALVAREZ, Individually and in his capacity as Director
of the Corruption and Organized Crime Investigations Division;
MIGUEL GIERBOLINI, Individually and in his capacity as
Sub-Director of the Special Investigations Bureau;
ISMAEL CASTRO, Individually and in his capacity as Interim
Director of the Division for the Investigation of Public
Officials involved in Organized Crime (SIFACO);
ERNESTO FERNÁNDEZ, Individually and in his capacity as Interim
Director of the Organized Crime Division; JOSÉ VÁZQUEZ-PÉREZ,
Individually and in his capacity as Assistant District Attorney
for the District of Carolina,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Eduardo A. Vera-Ramírez, with whom Anabelle Rodríguez,
Secretary of Justice, Landrón & Vera, LLP, and Eileen Landrón-
Guardiola, were on brief, for appellants Pedro Pierluisi, Lydia
Morales, Domingo Alvarez, Miguel Gierbolini, Ismael Castro, Ernesto
Fernández.
Esther Castro-Schmidt, with whom Anabelle Rodríguez, Secretary
of Justice, were on brief, for appellants José Fuentes-Agostini and
Aníbal Torres.
Irma R. Valldejuli, on brief for appellee Claribel Rivera-
Jiménez.
Mariángela Tirado-Vales, on brief for appellee Elisbel
Maldonado-Rivera.
March 29, 2004
TORRUELLA, Circuit Judge. Defendants-appellants seek to
appeal the district court's denial of their summary judgment
motions. The motions were predicated in part on a state official's
qualified immunity from suit. Plaintiffs-appellees Claribel
Rivera-Jiménez ("Rivera") and Elisbel Maldonado-Rivera
("Maldonado") challenge this court's jurisdiction to review the
appeal. For the reasons stated below, we affirm in part and
dismiss in part.
I. Background
Plaintiffs Rivera and Maldonado brought an action in
September 1997 under 42 U.S.C. § 1983 for alleged violations of
their rights under the First and Fourteenth Amendments of the
United States Constitution and Article II, § 4 of the Constitution
of the Commonwealth of Puerto Rico.
Both plaintiffs worked at the Commonwealth of Puerto
Rico's Department of Justice.1 Rivera was a special agent at the
Special Investigations Bureau ("SIB") of the Department of Justice
from 1989 until her employment was terminated in 1999. In 1996,
Rivera was conducting an investigation into a December 1989 murder
1
In reciting a factual overview, we seek only to give context to
our jurisdictional ruling and do not disturb any of the district
court's findings. The official positions of the named defendants
are given for the time period relevant to the factual allegations
on which the complaint is based, except for the position of
Secretary of Justice and Director of the Special Investigations
Bureau, where there was a change of personnel in both positions in
1997.
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in which criminal charges had not been filed. During the
investigation, she learned that Lydia Morales ("Morales"), Director
of SIB until 1997, was the local prosecutor who had been assigned
to investigate the crime shortly after it happened. Rivera
concluded that Morales had acted at least negligently or otherwise
unlawfully. She filed a report which she allegedly showed to her
supervisors. At some point, Rivera alleges, she was perceived by
her supervisors as leaking this report to the local press. Despite
charges being filed in the murder case, Rivera continued in her
attempts to bring attention to the alleged corruption within SIB.
Rivera alleges in her complaint that after communicating the
report's findings to her superiors she was the object of hostility
and abuse in the workplace.2
Plaintiff Maldonado began his employment at the SIB in
1995. He was assigned to investigate drug trafficking and weapons
smuggling by public officials. In September 1996, Maldonado
discovered that some files were missing from his locked file
cabinet. The files were related to one of his investigations at
SIB. He clashed with his supervisor Ismael Castro ("Castro") over
this investigation and the issue of the stolen files. The local
press learned of the stolen files and reported the story leaving
SIB personnel to think Maldonado leaked the story. In addition,
2
Rivera conducted a subsequent investigation into casino
licensing, after which, she alleges her supervisors requested she
keep the results of that investigation to herself.
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Maldonado was also asked what he knew about Rivera's investigation
by Morales and a local prosecutor in a meeting, and by Castro. He
alleges that he began receiving negative evaluations at work and
was the object of retaliatory harassment by his supervisor and
other agents at SIB.
Plaintiffs brought a complaint against the Secretary of
the Department of Justice, their respective supervisors and the
head of the SIB. Plaintiff Maldonado's claims against defendant
José Fuentes-Agostini ("Fuentes-Agostini") were voluntarily
dismissed.3
After discovery was completed, the remaining defendants
filed motions for summary judgment. Defendants Fuentes-Agostini
and Aníbal Torres ("Torres"), director of the SIB after 1997, argue
several issues in their brief, including whether the First
Amendment law was clearly established at the time the alleged
constitutional violation took place. The other co-defendants,
Pedro Pierluisi ("Pierluisi"), the Secretary of Justice until 1997;
Morales, director of the SIB; Domingo Alvarez ("Alvarez"), director
of the Corruption and Organized Crime Investigation Division of
SIB; Miguel Gierbolini ("Gierbolini"), sub-director of the SIB;
Castro, the interim director of the Division for the Investigation
of Public Officials involved in Organized Crime; and Ernesto
3
Co-defendant Fuentes-Agostini was sworn in as Secretary of
Justice in January 1997. Maldonado had not advanced any specific
claims against Fuentes-Agostini.
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Fernández ("Fernández"), the interim director of the Organized
Crime Division, argue that they are entitled to qualified immunity.
The summary judgment motions were referred to a
magistrate judge for report and recommendation. The magistrate
judge recommended that all motions for summary judgment be denied
except Pierluisi's motion as to Maldonado's claims and all claims
against Fuentes-Agostini for money damages in his official
capacity.4
The district court adopted the Report and Recommendation
after receiving defendants' objections. Defendants-appellants
appeal from this order.
II. Jurisdiction
Defendants-appellants assert that this court has
jurisdiction to hear an interlocutory appeal of the district
court's denial of their motions for summary judgment based on the
doctrine of qualified immunity.
Defendants-appellants Pierluisi, Morales, Alvarez,
Gierbolini, Castro and Fernández argue that jurisdiction arises
under 28 U.S.C. § 1292(b). Defendants-appellants Fuentes-Agostini
and Torres-Rivera argue that jurisdiction arises under 28 U.S.C.
§ 1291.
4
This recommendation, based on Puerto Rico's Eleventh Amendment's
immunity from suit, is not at issue.
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Under 28 U.S.C. § 1291, the courts of appeal have
jurisdiction over "all final decisions of the district courts of
the United States . . . ." 28 U.S.C. § 1291. Under 28 U.S.C.
§ 1292(b), appellate courts have jurisdiction over interlocutory
appeals where a "controlling question of law" is involved, and
there is "substantial ground for difference of opinion." 28 U.S.C.
§ 1292(b). Section 1292(b) allows for district judges to certify
questions of law for review by the appellate court. In this
appeal, the district judge did not certify any such question.
Therefore, we determine that only 28 U.S.C. § 1291 may apply, and
examine whether the order appealed from is a final order within the
meaning of 28 U.S.C. § 1291.
It is a well-settled proposition that denials of
qualified immunity that turn on issues of fact rather than issues
of law are not immediately appealable as final orders. See Johnson
v. Jones, 515 U.S. 304, 311-12 (1995); Suboh v. Dist. Attorney's
Office, 298 F.3d 81, 89-90 (1st Cir. 2002); Stella v. Kelley, 63
F.3d 71, 74 (1st Cir. 1995). Defendants, who did not argue the
jurisdictional issue, seek to frame all the issues on appeal as
legal, not factual, ones. They argue that they were entitled to
qualified immunity as a matter of law and that the district court
erred in adopting the Report and Recommendation. We are convinced
that only certain aspects of the order denying summary judgment are
appealable. We explain.
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In Johnson v. Jones, 515 U.S. 304, 319-20 (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."
After evaluating the First Amendment claims brought by
plaintiffs, the magistrate judge concluded her recommendation as
follows:
[h]ere, as to both plaintiffs, there are fact
issues regarding the motives of defendants.
Indeed, a factor to consider in the case at
bar is the motive for the alleged adverse
employment action taken against the plaintiffs
. . . . Further, the evidence relating to the
defendants' motivation in the action taken
against plaintiffs is a factual matter . . . .
Accordingly, because there are factual issues
as to an essential element of plaintiffs'
claims (i.e., the motivation of defendants in
the actions taken against plaintiffs)
defendants' motions for summary judgment on
the basis of qualified immunity must be
denied.
Some of the defendants in this appeal seek to appeal
issues relating to the plaintiffs' First Amendment claim. However,
we do not have jurisdiction over denials of summary judgment
motions where a party seeks to appeal issues of evidentiary
sufficiency, or where a genuine issue of material fact remains in
dispute. In this case, the genuine issue of material fact which is
in dispute is the defendants' motive in the adverse employment
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actions. "[A] summary judgment order which determines that the
pretrial record sets forth a genuine issue of [material] 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."
Stella, 63 F.3d at 74.
The court below addressed the evidence supporting both
plaintiffs' First Amendment claims, dissecting them into the three
elements, and came to the conclusion that genuine issues of
material fact precluded entry of summary judgment. We do not have
jurisdiction to hear appeals of this nature. See Acevedo-García v.
Vera-Monroig, 204 F.3d 1, 10 (1st Cir. 2000) (holding that, when an
appeal from a denial of qualified immunity challenges the
sufficiency of the evidence, no appellate jurisdiction exists);
Guilloty-Pérez v. Fuentes-Agostini, 196 F.3d 293, 294 (1st Cir.
1999) (no appellate jurisdiction when district court denied summary
judgment motion "because there were material factual issues both as
to the nature of the involvement of [defendants], as well as their
[sic] motivations for their involvement") (internal quotation marks
omitted).
In Guilloty-Pérez, 196 F.3d at 294, a case strikingly
similar to the present one, we dismissed the appeal for lack of
jurisdiction. There, as here, the lower court denied qualified
immunity to the officers because genuine issues of material fact
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existed as to the defendants' motivation. Id. We are presented
with the same issue. We cannot review the district court's rulings
as to the sufficiency of the claims because certain determinations
remain to be made by the factfinder. Therefore, no appellate
jurisdiction exists under 28 U.S.C. § 1291 because the denial of
these summary judgment motions is not a final order. See Acevedo-
García, 204 F.3d at 10.
III. Qualified Immunity
"Denials of summary judgment on qualified immunity
grounds are reviewed to the extent that the qualified immunity
defense turns upon a purely legal question and any disputed facts
are not material to the issue of immunity." Suboh, 298 F.3d at 89-
90 (citing Fletcher v. Town of Clinton, 196 F.3d 41, 45 (1st Cir.
1999) (internal quotation marks omitted)). To determine whether an
official is entitled to qualified immunity we use a three-part
test: first, whether a constitutional violation has been alleged if
plaintiffs' allegations are established as true; second, whether
the law was clearly established at the time of the alleged
violation; and last, whether a reasonable official, similarly
situated would understand that the challenged conduct violated a
constitutional norm. Id. at 90; see also Wilson v. Layne, 526 U.S.
603 (1999).
For the reasons stated above, we lack jurisdiction to
review the lower court's determination that genuine issues of
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material fact exist as to the defendants' motives in taking various
allegedly retaliatory actions against the plaintiffs. However, the
first prong of the qualified immunity inquiry -- whether
plaintiffs' allegations, if true, establish a claim of retaliation
in violation of the First Amendment -- implicates two other
questions, both of which are considered legal in nature, and
therefore subject to appellate review at this time insofar as they
could potentially sustain qualified immunity objections. See Mihos
v. Swift, 358 F.3d 91, 105 (1st Cir. 2004) (stating that a mere
issue of fact on unconstitutional motive does not carry plaintiff
to trial because defendant may prevail on other basis).
The first is whether plaintiffs' speech touches on
matters of public concern and is therefore protected under the
First Amendment. See id. at 102-03; see also Torres-Rosado v.
Rotger-Sabat, 335 F.3d 1, 11 (1st Cir. 2003). Here, despite
defendants' arguments to the contrary, plaintiffs' speech raised
the possibility of corruption in a public agency and is therefore
protected under the First Amendment. Torres-Rosado at 11-12 (even
internal memoranda raising such concerns are protected).
The second is whether an employee's First Amendment
interests outweigh the government's interests as an employer in
avoiding disruption in the workplace -- the so-called Pickering
balancing test. See Mihos, 358 F.3d at 103 (citing Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968)); see also Torres-Rosado,
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335 F.3d at 11, 13. Although this determination is usually a legal
one, it may be necessary to resolve the disputed questions of fact
(such as whether a defendant's claim of potential disruption is
reasonable) before an evaluation can properly be made. See Johnson
v. Ganim, 342 F.3d 105, 114-15 (2d Cir. 2003). On this record, we
agree with the magistrate judge that the defendants' allegations of
disruption fail to show that they are entitled to summary judgment
on this issue as a matter of law.
In addition, the defendants argue that neither plaintiff
has suffered a sufficiently adverse employment action to support a
First Amendment retaliation claim. Although defendants contend
that this is a legal determination capable of review at this
juncture by virtue of defendants' assertion of qualified immunity,
it is not entirely clear this is so. See Myers v. Neb. Health &
Human Servs., 324 F.3d 655, 660 (8th Cir. 2003) (holding that this
is a jury issue, at least where there are material facts in dispute
as to whether employer's action affected a material change in
employee's working conditions).
In any event, the standard for showing an adverse
employment action is lower in the First Amendment retaliation
context than it is in other contexts (such as Title VII), see Power
v. Summers, 226 F.3d 815, 820-21 (7th Cir. 2000), and the Supreme
Court has indicated that even relatively minor events might give
rise to liability. See Rutan v. Republican Party of Ill., 497 U.S.
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62, 75-76 & n.8 (1990); see also Coszalter v. City of Salem, 320
F.3d 968, 974-77 (9th Cir. 2003) ("To constitute an adverse
employment action, a government act of retaliation need not be
severe and it need not be of a certain kind."); Power, 226 F.3d at
820 ("Any deprivation under color of law that is likely to deter
the exercise of free speech, whether by an employee or anyone else,
is actionable . . . ."); but see Breaux v. City of Garland, 205
F.3d 150, 157 (5th Cir. 2000) (holding that some employment actions
are not actionable even though they have the effect of chilling the
exercise of free speech).
Here, the plaintiffs have alleged sufficiently adverse
employment actions to sustain their retaliation claims. Plaintiff
Rivera claims that she was subjected to, among other things,
internal investigation and ultimately dismissal as a result of
engaging in protected speech. Plaintiff Maldonado claims that he
was subjected to, among other things, the denial of special
benefits and assignments. Assuming these allegations are true,
Suboh, 298 F.3d at 90, and absent more information minimizing the
impact of the denial of benefits, plaintiffs have alleged
sufficiently adverse employment actions to underpin a claim of
impermissible retaliation.
We turn now to the second prong of the qualified immunity
analysis. "The question of whether a right is clearly established
is an issue of law for the court to decide." Suboh, 298 F.3d at 90
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(citing Elder v. Holloway, 510 U.S. 510, 516 (1994)); see also
Stella, 63 F.3d at 77. Defendants Fuentes-Agostini and Torres
argue that the court below erred in determining as a matter of law
that plaintiffs' First Amendment right was clearly established in
1996 and 1997, when the injuries are alleged to have occurred.
"One tried and true way of determining whether [a] right
was clearly established at the time the defendants acted, is to ask
whether existing case law gave the defendants fair warning that
their conduct violated the plaintiff's constitutional rights."
Suboh, 298 F.3d at 93 (citation omitted). The magistrate judge did
exactly this, looking to the caselaw as it existed at the time,
which had held that these types of retaliatory action in
employment, involving a public employee's speech on a question of
public concern, was a clear violation of the First Amendment.5
Moreover, the unconstitutionality of such retaliation was clearly
established in this circuit and the Supreme Court at the time of
the alleged violations. See, e.g., Rutan, 497 U.S. 62 (1990)
(holding that conditioning any employment promotion or action on
patronage violates a public employee's First Amendment rights
absent compelling government interest); Branti v. Finkel, 445 U.S.
507 (1980) (holding that public employees may not be retaliated
against in violation of the First Amendment rights); Broderick v.
5
She looked to a consent decree entered into in the District of
Puerto Rico, Pierluisi v. El Vocero, Civ. No. 95-1312(HL)(D.P.R.),
where the claims alleged were the same as here.
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Roache, 996 F.2d 1294 (1st Cir. 1993) (holding that a police
officer who filed a grievance and was subject of workplace
retaliation has stated a prima facie case for First Amendment
retaliation); Romero-Barceló v. Hernández-Agosto, 876 F. Supp.
1332, 1347 (D.P.R. 1995), aff'd, 75 F.3d 23 (1st Cir. 1996)
(stating that courts have recognized the government cannot
terminate public employees in retaliation for certain disfavored
speech activities) (citing First Circuit cases).
We are convinced that the contours of plaintiffs' First
Amendment rights were clearly established as a matter of law and
therefore affirm the lower court's determination on that issue.
As to the third prong of the qualified immunity
determination, "[t]he reasonableness inquiry is also a legal
determination, although it may entail preliminary factual
determinations if there are disputed material facts (which should
be left to a jury)." Suboh, 298 F.3d at 90 (citing Swain v.
Spinney, 117 F.3d 1, 10 (1st Cir. 1997)). In the instant appeal,
the lower court determined that questions remained as to the issue
of defendants' motive which precluded entry of summary judgment on
qualified immunity grounds. Since "pre-trial qualified immunity
decisions are immediately appealable as collateral orders when the
immunity claim presents a legal issue that can be decided without
considering the correctness of the plaintiff's version of the
facts," Acevedo-García, 204 F.3d at 14, we cannot exercise
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jurisdiction over this part of the qualified immunity analysis.
Doing so would entail making a determination of material facts.
IV. Conclusion
Therefore, we affirm the district court's holding to the
extent described above. The remainder of the appeal is dismissed
for lack of jurisdiction.
Affirmed in part, dismissed in part.
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