United States Court of Appeals
For the First Circuit
No. 05-2215
KEVIN VALDIZÁN,
Plaintiff, Appellee,
v.
VICTOR RIVERA-HERNANDEZ, ETC.,
Defendant, Appellant.
APPEAL 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,
Selya and Lynch, Circuit Judges.
Celina Romany, with whom Celina Romany Law Offices was on
brief, for appellant.
Francisco R. Gonzalez, with whom Bufete F. R. Gonzalez was on
brief, for appellee.
April 17, 2006
SELYA, Circuit Judge. "Qualified immunity protects
public officials from civil liability insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Surprenant v.
Rivas, 424 F.3d 5, 14 (1st Cir. 2005) (citations and internal
quotation marks omitted). A public official's assertion of a
qualified immunity defense engenders a tripartite analysis. See
Saucier v. Katz, 533 U.S. 194, 207-08 (2001); Limone v. Condon, 372
F.3d 39, 44 (1st Cir. 2004). The first component of that analysis
involves ascertaining whether the plaintiff's averments, if true,
establish a violation of a right secured by federal constitutional
or statutory law. See Limone, 372 F.3d at 44. The case at hand
turns on an application of this facet of the qualified immunity
doctrine.1
The plaintiff here, Kevin Valdizán, is a quondam employee
of the Puerto Rico Department of Labor. He claims that he was
cashiered in 2001 because of his political leanings. After a
modicum of pretrial discovery, the Secretary of the Puerto Rico
Department of Labor moved for summary judgment on the ground of
qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19
(1982). After the district court denied the motion, this
interlocutory appeal ensued.
1
Because the first component of the analysis is dispositive
here, see text infra, we need not elaborate upon the other two
steps in the pavane.
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Generally, our appellate jurisdiction is limited to the
review of final orders and judgments. See 28 U.S.C. § 1291.
Interlocutory orders, such as those denying summary judgment, are
not normally appealable as of right when entered. See, e.g.,
Camilo-Robles v. Zapata, 175 F.3d 41, 44-45 (1st Cir. 1999). A
qualified immunity defense, however, raises special considerations.
Thus, when a public official qua defendant seeks the prophylaxis of
that doctrine and unsuccessfully pursues summary judgment, he
sometimes may appeal without awaiting the entry of final judgment.
See id. at 45. In broad-brush terms, the denial of such a motion
is immediately appealable if the central issue is a purely legal
one. See Johnson v. Jones, 515 U.S. 304, 318 (1995). It is not
immediately appealable if the central issue is "whether or not the
pretrial record sets forth a 'genuine' issue of fact for trial."
Id. at 320.
In many situations in which a qualified immunity defense
has been raised, a district court's denial of summary judgment will
not fit neatly into one category or the other. This is so, in
part, because although the "[d]enial of summary judgment often
includes a determination that there are controverted issues of
material fact," that circumstance alone "does not mean that every
such denial of summary judgment is nonappealable." Behrens v.
Pelletier, 516 U.S. 299, 312-13 (1996) (emphasis in original). For
example, the court of appeals retains jurisdiction to entertain an
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immediate appeal in "situations in which the district court assumes
a set of facts and decides, as a matter of law, that those facts
will not support a qualified immunity defense." Camilo-Robles v.
Hoyos, 151 F.3d 1, 8 (1st Cir. 1998). In that event, "the court of
appeals can simply take, as given, the facts that the district
court assumed when it denied summary judgment for [a] (purely
legal) reason." Johnson, 515 U.S. at 319.
This case represents such a situation. The plaintiff
charges, in substance, that the Secretary transgressed his First
Amendment rights by firing him from his non-tenured position —
"Executive II" — because of their differing political allegiances.
The district court discerned a genuine issue of material fact as to
whether or not the record contained significantly probative
evidence linking political animus to the plaintiff's discharge. We
are not at liberty to reexamine that conclusion on an interlocutory
appeal. See Camilo-Robles, 151 F.3d at 8.
Still, that determination does not entirely close the
door to appellate jurisdiction. In reaching its decision, the
district court necessarily assumed that a patronage dismissal, if
proven, would be unconstitutional. As long as we do not question
the district court's determination that a reasonable jury could
find that political animus comprised the impetus behind the
plaintiff's ouster, we remain free to examine, on an interlocutory
appeal, whether that fact makes any cognizable legal difference.
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This means that, here, we remain free to examine the logically
antecedent (and completely separate) question of whether the
plaintiff occupied a position in the government agency for which
political affiliation is an appropriate qualification. See, e.g.,
Galloza v. Foy, 389 F.3d 26, 29-30 (1st Cir. 2004). We turn to
that discrete issue.
This inquiry starts — and in this case ends — with an
inspection of the functions of the position in question, aimed at
determining whether it is a policymaking position. See Branti v.
Finkel, 445 U.S. 507, 518 (1980) (framing the relevant inquiry as
"whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved"); Elrod v. Burns, 427
U.S. 347, 367 (1976) (plurality op.) (holding that, under the First
Amendment, "patronage dismissals" must be restricted to
"policymaking positions"); see also Rutan v. Repub. Party of Ill.,
497 U.S. 62, 74 (1990) (reaffirming Elrod/Branti rule and stating
that "government's interest in securing employees who will loyally
implement its policies can be adequately served by choosing or
dismissing certain high-level employees on the basis of their
political views"). On this issue, the material facts are
undisputed: the plaintiff served in a "trust" position labeled
"Executive II," and we may rely upon the official job description
for the position to determine whether it is one for which political
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loyalty is an appropriate qualification. See, e.g., Mendez-Palou
v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir. 1987)
("Whenever possible, we will rely upon [the written job
description] because it contains precisely the information we need
concerning the position's inherent powers and responsibilities . .
. .").
The applicable job description2 prominently includes
"[p]rofessional, executive and administrative financial
responsibilities" of a high order. In addition, the position
specifically requires the holder's participation in "the
formulation and implementation of public and finance policy" at the
project, commonwealth, and federal levels. And, finally, the job
description authorizes the holder to exercise "ample liberty in the
use of his judgment" in the performance of his administrative
functions. These stipulations leave no doubt but that, under our
precedents, the position is policymaking in nature. See, e.g.,
Galloza, 389 F.3d at 31-32; Cordero v. De Jesus-Mendez, 867 F.2d 1,
14 (1st Cir. 1989); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d
236, 242-46 (1st Cir. 1986) (en banc). As such, political
affiliation is, as a matter of law, an appropriate criterion for
2
The official job description in the record is in Spanish.
However, the Secretary's statement of material facts not in
dispute, see D.P.R. R. 56 (formerly D.P.R. R. 311.12), contains
translations of pertinent excerpts. The plaintiff has not
challenged either the accuracy or the completeness of those
translations. Accordingly, we accept them unconditionally.
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continued employment and the position, for federal constitutional
purposes, is fairly subject to the changing winds of patronage.
The plaintiff's only real response to this line of
reasoning is that the actual duties he performed as "Executive II"
were more technical than the official job description suggests,
and, therefore, that his position was not truly policymaking in
nature. Our case law makes it abundantly clear, however, that a
court must "focus on the powers inherent in a given office, as
opposed to the functions performed by a particular occupant of that
office." Jimenez Fuentes, 807 F.2d at 242; accord Cordero, 867
F.2d at 9; Mendez-Palou, 813 F.2d at 1258. The plaintiff offers no
reason why that general rule should not govern here. Accordingly,
the job description trumps the plaintiff's self-serving account of
his actual duties.
We need go no further. The only claim presently before
us is the plaintiff's First Amendment claim for money damages,
premised on political discrimination, against the head of the
agency that employed him. Because the plaintiff occupied a high-
level policymaking position, there is no First Amendment violation
even if raw politics prompted his release. The Secretary was,
therefore, entitled to qualified immunity. See Duriex-Gauther v.
Lopez-Nieves, 274 F.3d 4, 9-11 (1st Cir. 2001). Hence, the
decision of the district court denying the Secretary's motion for
summary judgment on the ground of qualified immunity is reversed,
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and the case is remanded for further proceedings consistent with
this opinion.
Reversed and remanded.
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