(dissenting).
This circuit is well on its way to creating a whole body of special jurisprudential exceptions just for Puerto Rican political discharge cases. See de Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986) (Torruella, J., concurring) (en banc consideration without panel opinion); de Abadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.1986) (Torruella, J., dissent*148ing) (rules applicable to summary judgment); Jimenez Fuentes v. Torres Gaztambide, 803 F.2d 1 (1st Cir.1986) (Torruella, J., dissenting) (findings under Rule 52(a) Fed.R.Civ.P.). The exception espoused by the majority in this case exempts appellants from the well-established rule that prohibits parties from raising on appeal issues not argued in the first instance before the district court. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); Latinos Unidos de Chelsea v. Secretary of Housing, 799 F.2d 774, 791 n. 26 (1st Cir.1986); Wightman v. Bureau of Alcohol, Tobacco & Firearms, 755 F.2d 979, 983 (1st Cir.1985); Cajigas v. Banco de Ponce, 741 F.2d 464, 466-67 (1st Cir.1984); Cohen v. President and Fellows of Harvard College, 729 F.2d 59 (1st Cir.), cert. denied, 469 U.S. 874, 105 S.Ct. 233, 83 L.Ed.2d 161 (1984); Codex Corp. v. Milgo Electronic Corp., 717 F.2d 622, 629 (1st Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1719, 80 L.Ed.2d 191 (1983); Eagle Picher Industries, Inc. v. Liberty Mut. Ins., 682 F.2d 12, 23 n. 8 (1st Cir.), cert. denied, 460 U.S. 1028, 103 S.Ct. 1280, 75 L.Ed.2d 500 (1982); Furtado v. Bishop, 604 F.2d 80, 87 (1st Cir.), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1979); Needleman v. Bohlen, 602 F.2d 1 (1st Cir.1979); McPhail v. Municipality of Culebra, 598 F.2d 603, 607 (1st Cir.1979); Johnston v. Holiday Inn, Inc., 595 F.2d 890, 894 (1st Cir.1979); Gual Morales v. Hernández Vega, 579 F.2d 677, 681-82 (1st Cir.1978). In Johnston we indicated that the rule would be “relaxed only in ‘horrendous cases where a gross miscarriage of justice would occur’.” Johnston, supra at 894. In McPhail we said that “[a] party may not ‘sandbag’ his case by presenting one theory to the trial court and then arguing for another on appeal.” McPhail, supra at 607.12 Although the majority acknowledges the applicability of this rule “except in rare cases where paramount considerations of justice require,” see at 140, it views appellant’s “powerful” arguments as requiring that such an exception be allowed in this case.
At the district court level appellant considered that plaintiff’s discharge dealt with Elrod-Branti13 issues, i.e., discharge because of political affiliation. All the evidence and argument presented by the parties, as well as the district court’s decision was so focused. Presumably inspired by the passage of time, appellant now believes that plaintiff’s discharge was because of his political activities and asks this court to engage in original decision-making based on an altogether different theory grounded on the Pickering-Connick line of cases.14 Not content with that lapsus, appellant also seeks to raise for the first time on appeal as part of its qualified immunity defense from damages, that at the time of plaintiff’s discharge the law was “by no means clearly established ... [that] plaintiff’s position was of the type protected under Elrod and Branti." Ante p. 140.
We are not dealing here with a pro se defendant, but rather one represented by able counsel, including the Department of Justice of Puerto Rico. This, of course, should make no difference as we have not hesitated to apply the rule against “sandbagging” even to pro se litigants. See Wightman, supra. It should not be too much to expect that parties represented by counsel of the caliber here involved be held accountable to at least as strict a standard, particularly since the issues now raised are not of new creation. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Pickering v. Board of Edu*149cation, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). I know of no valid reason why appellants failed to raise the new issues at the district court level — other Puerto Rican defendants have done so in an appropriate manner—e.g., de Abadia, supra. The reason given for excusing appellants from compliance with the anti-“sandbagging” rule, the alleged vagueness in the scope of high-echelon jobs to which Elrod-Branti is applicable, has nothing to do with the newly raised Pickering-Connick arguments, which depend on a scrutiny of the public employee’s conduct (e.g., speech content) to determine if it is constitutionally protected. There is no vagueness in the Pickering-Connick situation which was clarified by our recently decided cases of de Abadia, Torres Gaztambide and de Choudens. They did not involve Pickering-Connick issues.
This situation is aggravated because, as the facts recounted in the majority opinion clearly imply, ante at p. 142, defendants specifically decided below not to argue the lack of clarity in the law as grounds for a qualified immunity defense. The record reflects that “[e]ven when the trial judge, noting that ‘under the facts [he was] not going to accept that this is an area of uncertainty [in] the law,’ pressed defendant’s counsel for any decisions indicating that this case involved a ‘dubious grey area [ ] of civil rights,’ he conceded that Muñoz’ actions, if proven, were clearly unconstitutional.” Id. This is not an innocent oversight — it is a conscious waiver of a defense by trial counsel. Defendant should not be allowed to resurrect this defense on appeal.
Far from the “horrendous” scenario envisioned by this Court in Johnston, supra, as triggering an exception to the rule, what we have in this case is pure, unadulterated second guessing by the government defendant — “sandbagging”—which this court should not tolerate, much less excuse.
Entering the merits of the newly raised questions on appeal, I must say with all due respect to the majority, that in determining that appellant is entitled to qualified immunity on damages, it continues to misread the Supreme Court’s admonition in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), to the effect that:
All [the appellate court] need determine is a question of law: whether [1] the legal norms allegedly violated by defendant were clearly established, or [2] in cases where the district court has denied summary judgment for the defendant on the ground that, even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribes the actions defendant claims he took.
105 S.Ct. at 2816 (emphasis supplied). The law, i.e., you cannot discharge an employee solely for political reasons unless “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved,”15 was clearly established when plaintiff was discharged in this case. See de Abadia, supra, Appendix at 1209-1210 (Torruella, J., dissenting).
That the law was clearly established in 1983 is reflected by defendant’s actions below. Again referring to the majority’s opinion, ante at p. 142, it finds that “[defendant] curiously made no argument that [the law] was not clearly established in March 1983.” I find nothing “curious” about this situation. The fact is that everyone concerned with this case, except our Court when it decided de Abadia, thought that the law in question was clearly established, and that is why defendant failed to raise that defense and “conceded that [his] actions, if proven, were clearly unconstitutional.” Id.
To my knowledge, the First Circuit is the only court to have ruled that Branti is not clearly established law because the particular job being litigated has not previously been passed upon by the courts. If the majority opinion becomes the established law of the land, Branti will be meaningless. We will have interminable ad hoc *150litigation for every job description of every governmental position, federal, state, county, and municipal, before the “law is clearly established” for each such position. I cannot believe that is what the Supreme Court countenanced in deciding Branti. Cf. at p. 146.
In the alternative, if this is a Pickering-Connick situation, I fail to see how it is possible to say that the law was not clearly established. Pickering dates back to 1968, not that it should come to anyone’s surprise that, in this day and age, discharging an employee for aspiring to run for public office is violative of some constitutional provision.
Last but not least, while I may personally favor a statute similar to the Hatch Act, 5 U.S.C. § 7324 for Puerto Rico, since the Legislature of Puerto Rico has not seen fit to enact such a statute, I think it inappropriate for this court to curtail, by judicial fiat, the right of public employees in Puerto Rico to engage in such activities. See p. 145-46.
I dissent.
. The term "sandbagging” is an old sailboat racing term, referring to the use of sandbags for ballast, which in turn were moved about the boat’s hold depending on how the wind blew. Interestingly enough, “sandbagging" is no longer permitted in sailboat racing.
. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).
. Pickering v. Board of Education, 391 U.S. 563, 95 S.Ct. 992, 43 L.Ed.2d 214 (1968); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
. Branti, supra 445 U.S. at 518, 100 S.Ct. at 1295.