United States Court of Appeals
For the First Circuit
No. 06-1499
BERENICE R. SUEIRO VÁZQUEZ; WILFREDO APONTE PAGÁN,
Plaintiffs, Appellants,
ASTRID A. CAPPAS PÉREZ; DELMA ROSA COLÓN RODRÍGUEZ,
Plaintiffs,
v.
ENID TORREGROSA DE LA ROSA, in her personal and official capacity
as Executive Director of the State Historic Preservation Office;
ELIZABETH SOLA; VERÓNICA ÁLVAREZ; JOHN DOE; RICHARD ROE,
Defendants, Appellees,
FRANCISCO CÁTALA,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Lynch, Lipez, and Howard,
Circuit Judges.
John F. Neváres, with whom Carlos R. Ramírez and John F.
Neváres & Associates, P.S.C. were on brief, for appellants.
Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, were on brief, for appellees.
July 19, 2007
LYNCH, Circuit Judge. A jury found that a new Popular
Democratic Party ("PDP") administration in Puerto Rico had violated
the First Amendment political affiliation and Fourteenth Amendment
due process rights of New Progressive Party ("NPP") members
Berenice Sueiro Vázquez and Wilfredo Aponte Pagán when they were
fired from their positions as employees in Puerto Rico's State
Historic Preservation Office ("SHPO"). The jury also found that
the firings violated Article 1802 of the Puerto Rico Civil Code.
See P.R. Laws Ann. tit. 31, § 5141. The jury awarded substantial
compensatory and punitive damages: $380,000 in total for Sueiro,
and $210,000 in total for Aponte.
After return of the jury verdict, the district court
found that the defendant public officials were entitled to
qualified immunity, and vacated the damages award. Sueiro Vázquez
v. Torregrosa de la Rosa, 414 F. Supp. 2d 124, 134 (D.P.R. 2006).
The court also ordered the SHPO to reinstate Sueiro and Aponte to
their former jobs, holding that the defendants had failed to show
that the plaintiffs' appointments to their positions were null and
void under Puerto Rico law. Id. The plaintiffs appeal the
immunity order which defeated their damages claims; the defendants
purport to appeal the reinstatement order.
On plaintiffs' appeal, we affirm the grant of immunity.
The defendants acted, as they were required to do by law, on the
advice of the Secretary of Justice that Sueiro's employment was
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null and void under Puerto Rico law, and on the Secretary's
instruction to evaluate the legality of other personnel
transactions. On defendants' purported appeal, we hold that the
mere submission of a check for a filing fee to the district court
clerk, without a notice of appeal or any other filing (electronic
or hard copy), is insufficient to notice an appeal under Fed. R.
App. P. 3.
A general description of the case suffices for both
issues.
I. BACKGROUND
Plaintiffs Sueiro and Aponte were employees of the SHPO.
On September 1, 2000, pursuant to Puerto Rico Act No. 183,1 Sueiro
was transferred from a trust position as Assistant Advisor III to
a career position as Historic Conservation Manager. On or about
the same date, Aponte's position as Information Systems Specialist
was reclassified from a trust position to a career position.
1
The Governor of Puerto Rico signed Act No. 183 into law
on August 21, 2000. The Act created the SHPO, which was a
successor to the "Commonwealth Office for Historic Preservation."
P.R. Laws Ann. tit. 3, § 1115(a). The predecessor office was
created by executive order in 1985. Id. Act No. 183 classified
the SHPO as an "Individual Administrator" pursuant to the Puerto
Rico Public Service Personnel Act. Id. § 1111. The act also
provided that all personnel working at the predecessor office would
be transferred to the SHPO. Id. § 1115(b). It is undisputed that
Act No. 183 sought to avoid the complete turnover of professional
staff in the preservation office every time a new governor was
elected.
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Sueiro was terminated from her career position on February 8, 2002;
Aponte's employment was terminated on September 17, 2002.
Sueiro and Aponte sued, alleging violations of their
political affiliation and due process rights under the First and
Fourteenth Amendments of the Constitution and Sections 1, 6, and 7
of Article II of the Puerto Rico Constitution. They also brought
a tort action under Article 1802 of the Puerto Rico Civil Code.
After eleven days of trial, the jury found in plaintiffs' favor.
In its verdict forms, the jury rejected defendants' claims that
they had not discriminated, as well as defendants' defense under
Mt. Healthy City School District Board of Education v. Doyle, 429
U.S. 274, 287 (1977).
The defendants had raised the defense of qualified
immunity for the first time at trial. The district court had
reserved the issue until after the return of a verdict, Sueiro
Vázquez, 414 F. Supp. 2d at 128-29 & n.4, and ultimately found that
the defendants were entitled to qualified immunity, id. at 133. On
the first question of whether a constitutional right had been
violated, the court found that the jury verdict was supported by
evidence that the defendants had violated plaintiffs'
constitutional rights. Id. at 131. The court largely bypassed the
next question of whether such rights were clearly established. Id.
at 132-33. The court held, on the final prong, that qualified
immunity must be granted because the defendants reasonably had
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asked the Secretary of Justice for an opinion regarding the
legality of personnel transfers within the SHPO, and then
reasonably relied on that opinion. Id.
The Secretary's February 1, 2002 opinion stated that
Sueiro's appointment to a career position was "null" because the
prior administration's actions had violated P.R. Laws Ann. tit. 3,
§ 1351(7) (2000 & Supp. 2004). The opinion also directed the SHPO
to evaluate all personnel transfers from trust positions to career
positions as a result of Act No. 183, to ensure that such transfers
were made in accordance with section 1351. As a result of the
review ordered by the Secretary of Justice, Aponte's
reclassification into a career position likewise was found to be
null. Citing a Puerto Rico Supreme Court case, the district court
stated that the Secretary's opinion was binding on defendants,
whether or not the opinion was correct. Sueiro Vázquez, 414 F.
Supp. 2d at 133. The court held that the defendants acted in an
objectively reasonable manner by relying on the Secretary's opinion
in terminating Sueiro and Aponte. Id. at 132-33.
On the question of injunctive relief, the district court
held that there was sufficient evidence to support the jury's
finding that the plaintiffs had a property interest in their
employment, and so the court ordered reinstatement of Sueiro and
Aponte to their former positions. Id. at 134.
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Defendants moved for reconsideration of the reinstatement
order. The district court denied the motion and entered the order
denying reconsideration on March 28, 2006. This started the
running of the 30-day appeal period. See Fed. R. App. P.
4(a)(1)(A); see also 28 U.S.C. § 2107(a).
II. NOTICE OF APPEAL
A. Absence of a Notice of Cross-Appeal from Defendants
On March 31, 2006, the plaintiffs timely appealed from
the grant of qualified immunity and the vacatur of the damages
awards. The plaintiffs' appeal was docketed in our court as No.
06-1499, and a briefing schedule issued.
The defendants did not file a notice of cross-appeal.
However, on April 20, 2006 -- that is, within the 30-day appeal
period -- they paid an appellate filing fee by check to the
district court. The defendants at the time were represented by an
outside attorney, Francisco Rios Rivera. The payment is reflected
on the district court docket in this case as:
Appeal Fee Received $ 455.00, receipt number
162387 Fr: Francisco Rios Rivera (fg, )
(Entered: 04/20/2006)
On August 23, 2006, the defendants, now represented by
the Solicitor General of Puerto Rico, filed a motion in this court
stating that they had only recently realized that attorney Rios
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Rivera had purported to file a cross-appeal.2 The defendants asked
this court to stay the briefing schedule to permit them to pursue
a motion in the district court seeking leave to "correct the
erroneous filing" of the notice of appeal. They represented that
prior counsel had assured them that he had electronically filed the
notice of appeal. They argued, based on that representation, (1)
that the district court must have committed error in not docketing
a notice of appeal, and (2) that the April 20 payment of the filing
fee unambiguously demonstrated (a) their intent to appeal the
reinstatement order, and (b) their belief that their electronic
filing had been effective. They did not, however, file a copy of
the purported notice of appeal as received by the district court.3
Indeed, the defendants admitted that they could not be certain,
despite prior counsel's statement, that their notice of appeal was
ever filed. Their basic argument was that the notice must have
disappeared into the ether of electronic filing.
On August 22, 2006, the defendants had also filed a
motion in the district court requesting leave to "refile" their
notice of appeal. They proffered a copy of their purported notice
2
The defendants explained that the change in legal counsel
was necessary in light of the fiscal crisis faced by Puerto Rico in
April, May, and June of 2006. Due to this crisis, a number of
cases were handed over to the Department of Justice, causing a
significant increase in work for the Solicitor General's office.
3
The defendants did submit a document entitled "Notice of
Appeal" dated April 19, 2006, but there was nothing to suggest that
the document had in fact been received by the district court.
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of appeal. The certificate of service for the notice stated that
the document was electronically filed on April 19. But the
defendants offered no proof that the notice of appeal had ever
actually been filed with the district court. The defendants also
proffered an image of the check for the filing fee that was
docketed as received by the district court on April 20. That check
carried the notation "Notice of Appeal re: Berenice Sueiro." As
they later did before this court, the defendants argued that the
fee payment evidenced both their intent to file a notice of appeal
as well as their belief that their electronic filing had been
effective. The plaintiffs opposed the defendants' request, arguing
that (1) the defendants could not prove that they had in fact filed
a notice of appeal, (2) the payment of the appellate filing fee did
not provide the notice that Fed. R. App. P. 3(c)(1) requires, and
(3) to the extent that the defendants were seeking an enlargement
of time to file a notice of appeal, they did not, and could not,
establish excusable neglect or good cause.
On August 25, 2006, the district court concluded that
since the defendants could not furnish material evidence to show
that they had in fact filed the notice of cross-appeal, and since
the docket did not reflect such a filing, no notice of appeal had
been filed. It rejected the argument that the electronic case
filing system had somehow eaten the notice. The court then
construed defendants' motion as one for an extension of time to
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file a notice of appeal under Fed. R. App. P. 4(a)(5)(A). The
district court concluded that defendants had failed to demonstrate
"excusable neglect or good cause," as required by Rule 4(a)(5)(A),
because a change in legal representation and a suddenly busier
practice are fairly commonplace, and attorneys must be prepared to
deal with the difficulties that attach to both sets of
circumstances.4
B. Federal Rule of Appellate Procedure 3(c)
In its August 23 motion to this court, defendants asked
that they be allowed to challenge the reinstatement order "as part
of the current appeal." That request has no merit. "A party who
neglects to file a cross-appeal may not use his opponent's appeal
as a vehicle for attacking a final judgment in an effort to
diminish the appealing party's rights thereunder." Figueroa v.
Rivera, 147 F.3d 77, 81 (1st Cir. 1998). This is exactly what the
defendants seek to do here. The prohibition on this kind of attack
is "'inveterate and certain.'" El Paso Natural Gas Co. v.
4
The defendants moved for reconsideration, arguing that
the timely payment of the filing fee constituted material evidence
establishing that they had "engaged in the filing" of the notice of
appeal and believed that they had done so successfully, and that it
was at least as likely that the lack of reflection of this filing
on the docket was a failure of the electronic system itself, rather
than a failure of counsel.
The district court summarily denied the defendants'
motion for reconsideration. The defendants have not appealed this
ruling. The defendants' failure to appeal the district court's
denial of their request to "refile" the notice of appeal precludes
them from arguing that the district court erred or abused its
discretion in so ruling.
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Neztsosie, 526 U.S. 473, 479 (1999) (quoting Morley Constr. Co. v.
Md. Cas. Co., 300 U.S. 185, 191 (1937)). The cross-appeal
requirement "is not there to penalize parties who fail to assert
their rights, but is meant to protect institutional interests in
the orderly functioning of the judicial system, by putting opposing
parties and appellate courts on notice of the issues to be
litigated and encouraging repose of those that are not." Id. at
481-82.
We turn to the legal question of whether the recorded
payment of the appellate filing fee suffices to notice an appeal.
Fed. R. App. P. 3(c) is entitled "Contents of the Notice of Appeal"
and identifies the requisite elements of a notice of appeal:
(1) The notice of appeal must:
(A) specify the party or parties taking the
appeal by naming each one in the caption or
body of the notice, but an attorney
representing more than one party may describe
those parties with such terms as "all
plaintiffs," "the defendants," "the plaintiffs
A, B, et al.," or "all defendants except X";
(B) designate the judgment, order, or part
thereof being appealed; and
(C) name the court to which the appeal is
taken.
The Rule further states that "[a]n appeal must not be dismissed for
informality of form or title of the notice of appeal, or for
failure to name a party whose intent to appeal is otherwise clear
from the notice." Fed. R. App. P. 3(c)(4).
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The filing of a notice of appeal is a jurisdictional
requirement. See Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007);
see also Becker v. Montgomery, 532 U.S. 757, 765 (2001). The
requirements of Rule 3 are liberally construed,5 and we may find
that a litigant "has complied with the rule if the litigant's
action is the functional equivalent of what the rule requires."
Smith v. Barry, 502 U.S. 244, 248 (1992) (quoting Torres v. Oakland
Scavenger Co., 487 U.S. 312, 316-17 (1988)) (internal quotation
marks omitted). Smith held:
While a notice of appeal must specifically
indicate the litigant's intent to seek
appellate review, the purpose of this
requirement is to ensure that the filing
provides sufficient notice to other parties
and the courts. Thus, the notice afforded by
a document, not the litigant's motivation in
filing it, determines the document's
sufficiency as a notice of appeal.
Id. at 248 (emphases added) (citations omitted).
The defendants' mere payment of the appellate filing fee
fails to meet this test. The check itself was not a filing in the
record, and so could not give sufficient notice of appeal. Checks
are not kept in the clerk's office -- they are presented for
payment. The docket entry memorializing the payment of the fee is
not itself a "filing" or "document." The defendants have offered
5
Other parts of the Federal Rules of Appellate Procedure
pertinent to the filing of a notice of appeal require strict
adherence. See Bowles, 127 S. Ct. at 2366 (rejecting a "unique
circumstances" exception to requirement that notice of appeal be
timely filed).
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no evidence that there was any such filing or document attached to
the payment. Indeed, this court has inquired of the district court
whether a cover letter accompanied the check. A search was
conducted, and nothing was found. Moreover, the defendants concede
that the PACER electronic filing system did not reflect the filing
of any notice of appeal.
None of the cases relied on by the defendants is on
point.6 Courts have found filings (rather than the mere payment of
an appellate filing fee) to constitute the functional equivalent of
a notice of appeal. See, e.g., Intel Corp. v. Terabyte Int'l,
Inc., 6 F.3d 614, 617-18 (9th Cir. 1993) (opening appellate brief);
McLemore v. Landry, 898 F.2d 996, 999 (5th Cir. 1990) ("inartfully
drawn" notice of appeal). Here, there was no such filing at all.
We reject the defendants' argument that it is the intent
of the would-be appellant which is dispositive. The argument
ignores the interest in assuring that a party's filing provides
adequate notice to other parties and the courts. See Smith, 502
U.S. at 248-49. The plaintiffs were never served with a copy of
even the check, much less a notice of appeal. The defendants argue
that the district court and the plaintiffs did have notice: they
should have known from the timing of the payment of the filing fee
6
The defendants are public officials, and their reliance
on pro se cases does not advance their cause. See, e.g., Barrett
v. United States, 105 F.3d 793, 794-96 (2d Cir. 1996) (per curiam),
Turner v. Armontrout, 922 F.2d 492, 494 (8th Cir. 1991); Grune v.
Coughlin, 913 F.2d 41, 43 (2d Cir. 1990).
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from what orders an appeal was taken, and which parties were
involved in the appeal. This argument has no purchase where the
would-be appellant can point to no filing that provided sufficient
notice. See id. at 248-49; cf. McLemore, 898 F.2d at 999.
Absent more, the submission of a check to the clerk in
the amount of the filing fee, even with a legend on the check, is
not the functional equivalent of a notice of appeal. "Th[e]
principle of liberal construction [of Rule 3] does not . . . excuse
noncompliance with the Rule." Smith, 502 U.S. at 248. The
defendants' purported cross-appeal is dismissed.
III. QUALIFIED IMMUNITY
The plaintiffs appeal from the district court's post-
verdict grant of qualified immunity. We employ de novo review of
the legal conclusions. See Borges Colón v. Román-Abreu, 438 F.3d
1, 18 (1st Cir. 2006).
In this circuit, we have utilized a three-part test for
qualified immunity. See Tremblay v. McClellan, 350 F.3d 195, 199
(1st Cir. 2003). Other circuits have used a test that addresses
the same issues, considered in two steps. See, e.g., Davis v. City
of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007); Papineau v.
Parmley, 465 F.3d 46, 55 (2d Cir. 2006).
The district court decided the first of the immunity
questions -- whether there was a violation of constitutional rights
-- in favor of plaintiffs. Sueiro Vázquez, 414 F. Supp. 2d at 131.
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Under our immunity law, the second question is whether the
constitutional right was clearly established at the time of
violation. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 7 (1st Cir.
2005). The final question is "whether a reasonable officer,
similarly situated, would understand that the challenged conduct
violated the clearly established right at issue." Borges Colón,
438 F.3d at 18-19 (quoting Riverdale Mills Corp. v. Pimpare, 392
F.3d 55, 61 (1st Cir. 2004)) (internal quotation marks omitted).
The district court did not decide whether the plaintiffs' rights
were clearly established in the specific context of this case, and
instead based its holding on the third prong of our immunity
inquiry. Sueiro Vázquez, 414 F. Supp. 2d at 132-33. We agree with
the district court that the defendants are entitled to immunity on
the third prong.7
The facts do not permit a finding that these defendants
would have understood that they were violating clearly established
rights of the plaintiffs. Puerto Rico law requires executive
branch public officials to act in accordance with the opinion of
the Secretary of Justice when those officials seek clarification
7
The parties have not adequately briefed the first two
prongs, and the better course is not to address the constitutional
question, particularly where addressing such a fact-specific
question will not well serve a law clarification function.
See Riverdale Mills, 392 F.3d at 62; Dirrane v. Brookline Police
Dep't, 315 F.3d 65, 69-70 (1st Cir. 2002); see also Morse v.
Frederick, 127 S. Ct. 2618, 2007 WL 1804317, at *20-22 (2007)
(Breyer, J., concurring in the judgment in part and dissenting in
part).
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from the Secretary.8 See Colegio de Ingenieros y Agrimensores de
P.R. v. Autoridad de Acueductos y Alcantarillados de P.R., 131 P.R.
Dec. 735, 775 (1992) (recognizing that the Secretary of Justice's
opinions bind those administrative agencies that seek his or her
advice). The defendants acted in accordance with the opinion of
the Secretary of Justice that as a matter of Puerto Rico law
Sueiro's appointment to her career position was wrongful, and with
the Secretary's instruction that other personnel transfers pursuant
to Act No. 183 be evaluated. The advice specifically applied to
the transactions which are the subject matter of this suit.9
The Secretary provided an opinion to defendant Torregrosa
de la Rosa about plaintiff Sueiro, on which defendants reasonably
relied. That opinion unequivocally concluded that Sueiro's
appointment to the career position of Historic Conservation Manager
was contrary to the Puerto Rico Public Service Personnel Act, see
8
In its opinion and order, the district court stated that
Torregrosa de la Rosa "was required to act in accordance with the
Secretary's Opinion." Sueiro Vázquez, 414 F. Supp. 2d at 133.
Plaintiffs have not disputed this proposition, either in the
district court or in this court. Thus, for purposes of this case,
we assume that defendants were under such an obligation.
9
Citing U.S.I. Properties Corp. v. M.D. Construction Co.,
860 F.2d 1, 8 (1st Cir. 1988), the plaintiffs argue that immunity
was inappropriate based on the Secretary's opinion because the
Secretary's views are not binding on the courts. The argument
misses the point. Regardless of whether courts are similarly
bound, plaintiffs have not disputed that the defendants were under
an obligation to follow the Secretary's opinion.
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P.R. Laws Ann. tit. 3, § 1351(7), and was "null and consequently
ineffective."
The Secretary also directed Torregrosa de la Rosa to
evaluate all personnel transactions stemming from the
implementation of Act No. 183, in light of the requirements of
section 1351. As a result, the defendants engaged an outside human
resources expert, Ana Bonet, to perform an audit. Bonet concluded
that Aponte did not meet the statutory requirements necessary for
the career position to which he had been appointed in 2000,
following the logic of the Secretary's opinion. Defendants
reasonably relied on this conclusion.
"Under Puerto Rico law, personnel appointments made in
violation of Commonwealth laws and regulations normally 'are null
and void ab initio.'" Vázquez-Valentín v. Santiago-Díaz, 459 F.3d
144, 149 (1st Cir. 2006) (quoting González-de-Blasini v. Family
Dep't, 377 F.3d 81, 86 (1st Cir. 2004)). Officials similarly
situated to defendants would have reasonably believed that since
the plaintiffs' appointments to their career positions were null
and void, it would not violate the plaintiffs' clearly established
constitutional rights to terminate their employment from positions
they were not entitled to hold.10
10
Plaintiffs have not argued that it would be unreasonable
for a public official to terminate an employee based on a finding
that the employee's transfer was null and void. Cf. Morales-
Santiago v. Hernández-Pérez, --- F.3d ---, No. 06-1459, 2007 WL
1491880, at *5 (1st Cir. May 23, 2007) (noting the propriety of an
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Reliance on advice of counsel alone does not per se
provide defendants with the shield of immunity. For example, in
Borges Colón, an advice of counsel defense failed to establish
qualified immunity. There, the defendant mayor did not claim to be
bound by legal advice, and there was evidence that he had lied and
that he did not in fact get approval for his reorganization plan
from a human resources director and a municipal attorney; further,
the mayor had admitted to others that the reorganization plan was
a subterfuge to fire members of the opposition political party.
Id. at 7, 12, 16-17.
This case does not involve advice from private counsel,
who may have financial incentives to provide exactly the advice the
client wants. Rather, it involves advice from the office of the
Secretary of Justice of Puerto Rico, which has much broader duties
and obligations. Reliance on the advice of Puerto Rico's chief
legal officer, advice the defendants were required to follow by
Puerto Rico law, was not unreasonable here. See Swanson v. Powers,
937 F.2d 965, 971-72 (4th Cir. 1991). We leave for another day the
hypothetical situation in which there is very strong evidence that
newly appointed or elected defendant state officials acted in
conspiracy with the chief public legal officer to produce and act
on plainly unreasonable legal advice meant to result in the
administration's "tak[ing] corrective actions to undo [unlawful]
preferential salary adjustments").
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violation of a plaintiff's clearly established rights under federal
law. Cf. Vance v. Barrett, 345 F.3d 1083, 1094 n.14 (9th Cir.
2003).
This case does not come close to being that situation.
Plaintiffs ask us to get into the legal question of whether the
Secretary of Justice correctly or even reasonably interpreted
Puerto Rico law as to whether plaintiffs' appointments were null
and void. That is not an appropriate inquiry for the federal court
engaged in an immunity analysis. Even if the Secretary's advice
were wrong or not even within the reasonable range of
interpretations (and the Secretary's advice was within a reasonable
range), that would not itself mean that reasonable officials in the
position of defendants would understand that they were acting in
violation of plaintiffs' clearly established constitutional rights.
At oral argument, plaintiffs argued that Torregrosa de la
Rosa's request for an opinion from the Secretary contained a
"mischaracterization" of Sueiro's job duties and description, that
this mischaracterization was motivated by political discrimination,
and that this led the Secretary astray. Other circuits have denied
immunity to officers in Fourth Amendment cases where officers
manipulate evidence to mislead a prosecutor into authorizing an
arrest. See, e.g., Sornberger v. City of Knoxville, 434 F.3d 1006,
1016 (7th Cir. 2006). Further, in Cariglia v. Hertz Equipment
Rental Corp., 363 F.3d 77 (1st Cir. 2004), we outlined a theory of
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liability for employment discrimination by a corporate employer
when a subordinate motivated by discrimination provides erroneous
information to an unwitting superior who acts on that information
to terminate a plaintiff's employment. Id. at 85-88; see also
Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003); Abramson v.
William Paterson Coll., 260 F.3d 265, 285-86 (3d Cir. 2001);
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.
1997).
We leave for another day whether there is an analogy to
these cases for mandated reliance on advice of the Secretary of
Justice in a First Amendment political termination case which turns
on a state law classification issue. This theory was not raised in
the district court, nor was it raised in the plaintiffs' opening
brief in this court, and it is twice forfeited. See Teamsters
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992) (arguments not advanced in the district court cannot be
raised for the first time on appeal); Sandstrom v. ChemLawn Corp.,
904 F.2d 83, 86-87 (1st Cir. 1990) (arguments not asserted in
appellant's opening brief cannot be raised for the first time in
reply brief).
The judgment of the district court is affirmed. No costs
are awarded.
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