United States Court of Appeals
For the First Circuit
No. 09-2531
GIL A. RODRÍGUEZ-RAMOS,
Plaintiff, Appellant,
v.
RUBÉN A. HERNÁNDEZ-GREGORAT; SANTOS M. DELGADO-MARRERO;
GLADYS FUENTES-CRUZ; JUDITH MORALES-MORALES,
Defendants, Appellees,
INSURANCE COMPANY A, B, C,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Carlos A. Del Valle Cruz, with whom Eileen Landrón
Guardiola, Eduardo Vera Ramirez and Landrón & Vera, L.L.P. were
on brief, for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh,
Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor
General and Zaira Z. Girón-Anadón, Deputy Solicitor General were
on brief, for appellee Rubén A. Hernández-Gregorat and for
appellees Santos M. Delgado-Marrero, Gladys Fuentes-Cruz and
Judith Morales-Morales in their individual capacities.
Francisco J. Amundaray, with whom Eric R. Ronda and Mercado
& Soto, PSC, were on brief, for appellees Santos M. Delgado-
Marrero, Gladys Fuentes-Cruz and Judith Morales-Morales in their
official capacities.
July 12, 2012
HOWARD, Circuit Judge. Plaintiff-appellant Gil A.
Rodríguez-Ramos, a former trust employee of the Metropolitan Bus
Authority of Puerto Rico ("MBA"), sued various public officials
under 42 U.S.C. § 1983, alleging that a decision not to install him
in a career attorney position in the MBA was politically motivated
and was effected without due process of law, in violation of his
First and Fourteenth Amendment rights. The district court granted
the defendants' motion to dismiss all claims. For the reasons
discussed below, we affirm in part and reverse in part. We affirm
the dismissal of the due process claim as to all defendants, and as
well, dismissal of the First Amendment claim as to all defendants,
save for defendant Delgado. As to the First Amendment claim
against Delgado, we vacate the dismissal and remand with
instructions to grant plaintiff leave to amend the complaint.
I. FACTUAL BACKGROUND
On review of this motion to dismiss, we recount the
relevant facts based upon the well-pleaded allegations in the
complaint. See S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir.
2010) (en banc). We supplement that account with reference to
Puerto Rico statutes and facts susceptible to judicial notice, as
necessary to place the allegations in context. See Haley v.
Boston, 657 F.3d 39, 44 (1st Cir. 2011).
In asserting an entitlement to a position as an "Attorney
I within the MBA," the complaint alleges that Rodríguez is a long-
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standing and active member of the Popular Democratic Party ("PDP").
He began his public employment with the Commonwealth of Puerto Rico
in 1991 and for the next decade he held career positions in various
government agencies.1 He maintained his career status while
attending law school, and he was admitted to practice law in early
2000.
That spring, after taking the pertinent competitive exam,
Rodríguez was appointed to the career position of "Attorney I" in
the Administration of Corrections ("AOC"), where he had previously
worked in non-lawyer capacities. Approximately nine months later,
in January 2001, he was appointed to the trust position of Director
of the Office of Legal Affairs of the AOC. According to the
plaintiff's translation, his appointment letter stated:
This designation [to the Director of the Office
of Legal Affairs] does not excuse you from
complying with all the duties and
responsibilities of the position you presently
occupy as Attorney I in the Office of Legal
Affairs, position in the career service to which
you were promoted last March 1, 2000. Your
1
Under Puerto Rico's civil service laws, "career" employees
are "[t]hose employees who have been admitted into the public
service in faithful compliance with the [guidelines] established by
the body of laws in effect and which appl[y] to the recruitment and
selection processes of the career service at time of their
appointment," including the merit principle. P.R. Laws Ann. tit.
3, § 1465(1). Such employees are removable for "just cause" only.
Id. § 1462e(4). "Trust" employees, in contrast, are "employees
that substantially intervene or collaborate in the formulation of
public policy, or those who directly advise or render direct
services to the head of the agency." Id. § 1465(2). Such
employees "can be selected and removed at will." Id.
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probationary period shall not be interrupted
while you prevail in this designation.
On May 1, 2001, the AOC Secretary favorably evaluated Rodríguez and
approved his completion of the one-year probationary period for the
Attorney I position, effective April 1.2
Two months later Rodríguez was appointed to the trust
position of Deputy Administrator of Management and Administration
in the AOC. He was subsequently appointed to a number of other
trust positions in various agencies, including Assistant Secretary
of Investigations of the Department of Corrections and
Rehabilitation, Sub-Administrator of the AOC, Deputy Chief of
Administration and later Chief of the Medical Emergency Corps, and
Administrator of the General Services Administration (GSA). With
the exception of a brief two-week interlude in September 2005
during which he was reassigned to a career position as Attorney I,
Rodríguez held trust positions continuously from July 2001 until
December 2008.
This period of the plaintiff's employment in trust
positions coincided with PDP control of the governorship. In
November 2008, however, the candidate of the New Progressive Party
("NPP") was elected governor. With the resulting transfer of power
impending, the outgoing administration moved Rodríguez on December
2
There is a discrepancy in the plaintiff's pleadings between
the March 1, 2000 appointment date referenced in the appointment
letter and the April 1, 2000 date elsewhere in the complaint. This
discrepancy is not, however, material to our disposition.
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15, 2008 from his trust position as Chief of the Medical Emergency
Corps to a career attorney position within the GSA.3 Two days
later, on December 17, 2008, Rodríguez was appointed to the trust
position of Special Assistant to the President in the Metropolitan
Bus Authority, an agency of roughly 1,000 employees in which he had
never previously worked. This was the position that Rodríguez held
when the NPP government was installed two weeks later.
The political shift in the executive branch brought with
it changes in trust position personnel throughout the government.
The president of the NPP and new governor of Puerto Rico, Luis
Fortuño-Burset, appointed Ruben Hernández-Gregorat as Secretary of
Transportation and Public Works. Hernández, in turn, named Santos
M. Delgado-Marrero as President and General Manager of the MBA.
Upon Delgado's appointment, and allegedly at Delgado's
request, Rodríguez submitted a letter of resignation from his trust
position as Special Assistant on January 7, 2009. In his letter,
citing a provision of the Puerto Rico civil service law that
entitles a departing trust employee to reclaim a career position
3
This move was in apparent violation of the so-called
"electoral moratorium period." The Public Service Human Resource
Administration Act prohibits government authorities "from making
any personnel transaction which includes the essential areas of the
merit principle . . . [within] two (2) months before and two (2)
months after the holding of the General Elections of Puerto Rico."
P.R. Laws Ann. tit. 3, § 1462h. The Act provides that "[f]ailure
to comply with this measure shall entail the voiding of the
transaction thus carried out." Id. At this stage of the
litigation, the parties make no arguments about the impact, if
any, of this illegal 2-day appointment on the plaintiff's claims.
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equivalent to the last career position that the employee had held,
Rodríguez also requested that he be reinstated to an Attorney I
career position. See P.R. Laws Ann. tit. 3, § 1465a.
Contemporaneously with submitting this letter, Rodríguez requested
a meeting with Delgado to discuss the matter. Not having received
a reply, three weeks later Rodríguez submitted a second written
reinstatement request to Delgado. This request also went
unanswered.
Over the next few months, although remaining in his trust
position, Rodríguez was gradually relieved of the duties and
functions that he had performed as Special Assistant. The
complaint alleges that Delgado ordered Rodríguez's internet access
removed, excluded him from meetings, and severed his workload. The
complaint lists numerous days between January and the end of June
on which Rodríguez neither performed nor was assigned any job
function whatsoever. Although he occasionally was given
assignments to do legal work, in May when a union attorney referred
to the plaintiff a sexual harassment dispute that had arisen in the
MBA, Delgado issued orders preventing Rodríguez from handling the
matter. Instead, it is alleged, throughout this period Delgado
engaged outside counsel to handle this and most other legal matters
at a cost of approximately $30,000 per month.
Rodríguez's request to be placed in a career position
remained pending for most of the first half of 2009, although the
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complaint alleges that in April Delgado did attempt to have
Rodríguez transferred to another agency. In early March, Delgado's
executive secretary had told Rodríguez "not to worry" because his
request had been approved, but he remained in the Special Assistant
position into June. On June 15, Rodríguez inquired about his
status with Gladys Fuentes-Cruz, the MBA's Vice President of
Management and Human Capital, in the presence of Judith
Morales-Morales, Special Aide to Delgado in personnel matters.
Fuentes explained that she was not working on the matter, which was
being handled directly by Delgado with no involvement of Human
Resources personnel.
On June 22, Rodríguez received a letter from Delgado
appointing him to a career position as a Bus Terminal Administrator
within the MBA, effective the first day of July. Rodríguez
describes this appointment as a "demotion" to an "inferior working
position to that which he is entitled to" with a salary of "$3,000/
monthly below to that which he should have been entitled." Prior
to the effective date of this assignment, neither the President of
the MBA nor any member of the human resources staff met with
Rodríguez to discuss the assignment. Additionally, when on June 25
Rodríguez used the standard form to request a review of his
personnel file, he was told, allegedly contrary to standard
procedures, that he must write a letter making the request. The
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complaint states that Rodríguez complied and made such a written
request on June 30.
The next day, July 1, when his new duties were set to
begin, Rodríguez filed this action in federal court. Invoking 42
U.S.C. § 1983, he alleged that he was denied placement in an
Attorney I position in the MBA as a result of his political
affiliation and without due process of law, in violation of his
First and Fourteenth Amendment rights. The complaint named as
defendants Hernández, Delgado, Morales and Fuentes, each in his or
her individual and official capacities.
The district court dismissed the federal claims pursuant
to the defendants' motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), and this timely appeal followed.4
II. ANALYSIS
We review de novo an order of dismissal for failure to
state a claim. Tambone, 597 F.3d at 438. In conducting this
review, "we disregard statements in the complaint that merely offer
4
The plaintiff also asserted a violation of his Fourteenth
Amendment equal protection rights and invoked supplemental
jurisdiction over various claims arising under the laws and
constitution of Puerto Rico. The district court dismissed the
equal protection claim as indistinguishable from his First
Amendment political discrimination claim, see Pagán v. Calderón,
448 F.3d 16, 36-37 (1st Cir. 2006), and declined to exercise
supplemental jurisdiction over the Commonwealth claims. The
plaintiff does not challenge either disposition (although in his
reply brief he belatedly urges that the supplemental claims be
reinstated if the district court's dismissal is reversed), and we
limit our review accordingly.
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'legal conclusion[s] couched as . . . fact[]' or 'threadbare
recitals of the elements of a cause of action.'" Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009)). The
remaining, non-conclusory allegations are entitled to a presumption
of truth, and we draw all reasonable inferences therefrom in the
pleader's favor. See id. "The make-or-break standard . . . is
that the combined allegations, taken as true, must state a
plausible, not a merely conceivable, case for relief."
Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st
Cir. 2010). To survive a motion to dismiss, a complaint must, in
other words, "allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
129 S. Ct. at 1249.
A. Political Discrimination
It is well established that "[g]overnment officials are
forbidden by the First Amendment from taking adverse action against
public employees on the basis of political affiliation, unless
political loyalty is an appropriate requirement of the employment."
Ocasio-Hernández, 640 F.3d at 13 (citing, inter alia, Rutan v.
Republican Party of Ill., 497 U.S. 62, 75-76 (1990)). The parties
do not dispute that the plaintiff's position as Special Assistant
to the President of the MBA was a policymaking trust position for
which party affiliation was an "appropriate requirement for the
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effective performance of the [] office." Branti v. Finkel, 445
U.S. 507, 518 (1980). Consequently, to the extent that the
plaintiff attempts to challenge the diminution of his functions and
eventual transfer from that position, his claim necessarily fails.
See Valdizán v. Rivera-Hernandez, 445 F.3d 63, 66 (1st Cir. 2006);
Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 133 (1st Cir.
2005).
The main thrust of the political discrimination claim,
however, is that the plaintiff suffered political discrimination
when he was reinstated to a particular career position, when he
wanted another. Specifically, he challenges his assignment to the
purportedly inferior position of Bus Terminal Administrator rather
than to an Attorney I position in the MBA to which he claims
entitlement under Puerto Rico law. With respect to this employment
action, the First Amendment's prohibition on political
discrimination potentially does apply. Cf. Gaztambide-Barbosa v.
Torres-Gaztambide, 902 F.2d 112, 115-16 (1st Cir. 1990) (finding
First Amendment prohibition on political discrimination applicable
to defendants' failure to reinstate trust employee entitled to
career position under Puerto Rico civil service law).
To state an actionable claim of political discrimination,
the plaintiff's complaint must plausibly allege that he is not of
the defendants' political affiliation and that the defendants were
aware of his affiliation. The complaint must also allege an
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adverse employment action and that political affiliation was a
substantial or motivating factor for the adverse action. See
Lamboy-Ortiz v. Ortiz-Vélez, 630 F.3d 228, 239 (1st Cir. 2010).
"Moreover, each defendant's role in the [adverse action] must be
sufficiently alleged to make him or her a plausible defendant.
After all, we must determine whether, as to each defendant, a
plaintiff's pleadings are sufficient to state a claim on which
relief can be granted." Ocasio-Hernández, 640 F.3d at 16 (quoting
Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009))
(internal quotation marks omitted).
The district court correctly concluded that the
plaintiff's allegations of participation are speculative and thus
inadequate with respect to all of the defendants except Delgado.
Liability under Section 1983 "cannot rest solely on a defendant's
position of authority," Ocasio-Hernández, 640 F.3d at 16, yet that
is all that the plaintiff offers as to the roles of defendants
Hernández, Morales, and Fuentes in his reinstatement. The only
non-conclusory factual allegations made with respect to Hernández
are that he was appointed Secretary of Transportation and Public
Works and that he in turn appointed Delgado to the position of
President and General Manager of the MBA. As to Morales, the
complaint states only that she was a special aide to Delgado and
was present when the plaintiff asked Fuentes about the status of
his reassignment. The plaintiff did argue in response to the
motion to dismiss that Hernández and Morales have ultimate
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statutory authority over personnel decisions, see Metropolitan Bus
Authority Act, P.R. Laws Ann. tit. 23, §§ 601 et seq., but given
that the complaint contains no allegations that these individuals
actually participated in or condoned the personnel decision at
issue here, it fails to render them plausible defendants. Compare
Peñalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 595-96 (1st Cir.
2011) (holding insufficient bald assertions that defendants, by
virtue of their positions, "participated" in or "approve[d]" of
adverse employment action), with Ocasio-Hernández, 640 F.3d at
16-17 (reaching opposite result where complaint detailed
defendants' personal involvement).
The alleged participation of defendant Fuentes is no less
speculative. The complaint indicates that Fuentes was the MBA's
Vice President of Management and Human Capital, a position that
might more plausibly involve her in personnel decisions relating to
the reinstatement of removed trust employees. But the complaint
fails to include allegations to that effect, much less allegations
suggesting that Fuentes played any role specifically in the
plaintiff's reinstatement. See Ayala-Rodríguez v. Rullán, 511 F.3d
232, 235-36 (1st Cir. 2007). In fact, the complaint alleges just
the opposite: that Fuentes was kept out of employment decisions
involving the plaintiff. As such, there is no basis from which to
infer that Fuentes engaged in or "set[] in motion a series of acts"
that led to the alleged adverse employment action. Sanchez, 590
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F.3d at 50 (quoting Gutierrez-Rodriguez v. Cartagena, 882 F.3d 553,
561 (1st Cir. 1989)) (internal quotation marks omitted).
We turn, then, to whether the political discrimination
claim survives the motion to dismiss with respect to defendant
Delgado. There can be no disputing that the complaint satisfies
the first two political discrimination claim elements, which
incorporate an awareness by the defendant(s) that the plaintiff is
of a different political persuasion. The complaint contains
straightforward allegations that the plaintiff and Delgado are of
competing political parties, stating that Rodríguez is a member of
the PDP and each of the defendants is a member of the NPP. It also
contains detailed descriptions of the plaintiff's history of trust
positions held under PDP administrations and his active and visible
role in party politics, from which it is plausible to infer that
the defendants knew of his political affiliation.5 See Grajales v.
P.R. Ports Auth., No. 11-1404, 2012 WL 2126116 (1st Cir. 2012)
(plausible to infer defendants' knowledge from facts that plaintiff
was placed in a "prestigious trust position by PDP hierarch under
a PDP administration"); see also Montfort-Rodríguez v.
5
Rodríguez asserts that in addition to a long line of trust
positions under PDP administrations, he has held numerous posts
within the party, including: member of the Popular Youth; member of
the Autonomous Youth Movement of the PDP at the University of
Puerto Rico; PDP electoral representative in various electoral
units; PDP precinct president; PDP presidential delegate; president
of the PDP Public Servants; and member of the PDP Governing Board.
Rodríguez also alleges that he was known publicly as a PDP advocate
by virtue of his regular participation in television, radio, and
other media programming.
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Rey-Hernández, 504 F.3d 221, 225-26 (1st Cir. 2007) (finding that
defendant's knowledge that plaintiffs were trust employees under
prior party's administration was circumstantial evidence that
defendant was aware of political affiliation).
Taken as whole, the complaint also adequately alleges
Delgado's involvement in the decision to assign the plaintiff as a
Bus Terminal Administrator. We have noted that Fuentes was not
involved in the plaintiff's reinstatement to a career position
because, according to the complaint, Delgado took the matter into
his own hands. The plaintiff alleges that he was told that Delgado
was directly handling his reinstatement request, and his inquiries
into the status of that request were repeatedly directed back to
Delgado personally. Accepting these well-pleaded facts as true,
they give rise to the inference that Delgado was involved in, if
not directly responsible for, the reinstatement decision.
"The requirement of plausibility on a motion to dismiss
under Rule 12(b)(6) 'simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of the
illegal [conduct].'" Ocasio-Hernández, 640 F.3d at 17 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Under Puerto
Rico law, trust employees who were previously in the career service
are eligible to be reinstated as career employees. An "employee[]
with regular status in the career service who move[s] to the
confidential service, shall have the absolute right to be
reinstated in a position equal or similar to the last job [he] held
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within the career service," and "is entitled to all benefits in
terms of classification and salary that have been extended to the
career job they held during the term in which they served in the
confidential service." P.R. Laws Ann. tit. 3, § 1465a; see also
Colón-Santiago v. Rosario, 438 F.3d 101, 108-109 (1st Cir. 2006).
This "entitlement" is at the heart of Rodriguez' claim.
Rodríguez asserts that the Bus Terminal Administrator
position to which he was assigned is inferior to an Attorney I
position within the MBA to which he claims entitlement and that his
placement therefore effectively constituted a demotion. Cf.
Gaztambide-Barbosa, 902 F.2d at 116 (reasoning that refusal to
reinstate trust employee in career position "amounted,
functionally, to a dismissal from the agency").
Defendant Delgado does not dispute that demotions fall
within the scope of employment decisions subject to First Amendment
scrutiny. See e.g., Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d
97, 101 (1st Cir. 1997); Nereida-Gonzalez v. Tirado-Delgado, 990
F.2d 701, 705-706 (1st Cir. 1993). He maintains, however, that the
complaint is devoid of factual allegations sufficient to show
political motivation, as well as of allegations that the plaintiff
was deprived of rank or salary as a career employee and thus fails
to support the inference that a demotion occurred. See
Acosta-Orozco, 132 F.3d at 101 (defining demotions as "'involv[ing]
reductions in pay and official rank.'" (quoting Agosto-de-Feliciano
v. Aponte-Roque, 889 F.2d 1209, 1218 n.8 (1st Cir. 1989))).
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This case is far from the common political retaliation
claim since Rodriguez was not in fact terminated from employment as
a career employee. His claim is that state law gave him a right to
a better career employee position and Delgado denied him that. A
causally motivating factor in that decision by Delgado, he asserts,
was retaliation for his political beliefs and though he was not
deprived of all employment, he asserts that his First Amendment
rights extend this far.
Whether or not he has such an entitlement under state law
(on the law or the facts) is a matter which is unclear, as are the
contours of such an entitlement, if any. Even if he did have a
state law claim on the attorney's job, this panel of judges is
divided as to whether his complaint passes muster under Iqbal,
including as to the allegations of causation and political animus.
We are mindful that Iqbal was decided only weeks before this
complaint was filed, and that there may be further facts which may
enhance the pleadings and elucidate the theory advanced. As this
court commented in Peñalbert-Rosa v. Fortuno-Burset, 631 F.3d 592,
597 (1st Cir. 2011), another political discrimination case: "But
Twombley and Iqbal are relatively recent; developing a workable
distinction between "fact" and speculation is still a work in
progress."
In Peñalbert, we affirmed the dismissal as to certain
named defendants but vacated dismissal of the entire case to allow
plaintiff leave to amend. Id. It is within the power of a federal
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appellate court to do so when doing so is in the interests of
justice, as set forth in Peñalbert and Rivera-Gomez v. Castro, 843
F.2d 631 (1st Cir. 1988), and the cases cited therein. We think it
appropriate under our precedent to vacate the dismissal as to
defendant Delgado only and to remand with instructions to allow
plaintiff leave to amend as to Delgado.
B. Procedural Due Process
Rodríguez argues that in addition to suffering political
discrimination, he was denied his substantive due process rights
when he was deprived of his property interest in a career position
equivalent to his former attorney position without the benefit of
a "pre-demotion" hearing. In response, Delgado6 asserts that the
plaintiff never completed his probationary period and thus had no
property interest in a career position; in any event, Delgado
argues, he is entitled to qualified immunity because a reasonable
official could have concluded that the plaintiff had no right to
reinstatement. We need not address the viability of these
arguments in relation to the due process claim, because the
plaintiff has failed to demonstrate that Puerto Rico
post-deprivation remedies are constitutionally inadequate.
As mentioned, Rodríguez asserts that Delgado violated his
due process rights by denying him a "pre-demotion" hearing prior to
6
As with the First Amendment claim, the complaint fails to
allege sufficient personal involvement of any defendant except
Delgado in the conduct alleged to constitute a due process
violation.
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placing him in a position other than the attorney position to which
he claims entitlement. What Rodríguez terms a "demotion," however,
is not a demotion in the classic sense: he was not removed from,
but rather seeks an affirmative reassignment to, a position that he
has not held before and in which his alleged property interest is
contested. Thus, while under Loudermill and its progeny, see,
e.g., Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 538
(1985); Jirau-Bernal v. Agrait, 37 F.3d 1, 5 (1st Cir. 1994), an
employee's right to a prior hearing may extend to demotions from
currently held positions, that is not this situation. Indeed, we
have previously held that post-deprivation procedures available
under Puerto Rico law are sufficient to vindicate employee rights
when a former trust employee claims that she suffered salary and
benefit deprivations as a result of her reassignment to a career
position. See Maymí v. P.R. Ports Auth., 515 F.3d 20, 30 (1st Cir.
2008) (citing, inter alia, Amsden v. Moran, 902 F.2d 748, 755 (1st
Cir. 1990)); see also P.R. Laws Ann. tit. 3, §§ 1468 et seq. The
plaintiff makes no effort to explain why those procedures are
inadequate here. Under these circumstances, resort to available
Puerto Rico remedies provides all the process that is due.
III. CONCLUSION
We affirm the district court's order dismissing the
federal claims with prejudice, as well as the dismissal of the
supplemental claims without prejudice, as to all defendants save
for Delgado. As to Delgado, the dismissal is vacated only as to
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the First Amendment claim. The case is remanded for further
proceedings consistent with this opinion.
The parties shall bear their own costs.
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