Torres-Rivera v. Calderon-Serra

United States Court of Appeals
For the First Circuit

No. 04-2352

BASILIO TORRES-RIVERA ET AL.,

Plaintiffs, Appellants,

v.

SILA MARÍA CALDERÓN-SERRA ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Lynch, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Fernando L. Gallardo and Antonio Borrés-Otero, with whom Woods
& Woods LLP was on brief, for appellants.
Luis Sánchez-Betances, with whom Gerardo De Jesús Annoni and
Sánchez-Betances & Sifre, P.S.C. were on brief, for appellees.

June 14, 2005

*
Of the Tenth Circuit, sitting by designation.
 LYNCH, Circuit Judge. The basic question posed by this

action is whether political association rights under the First

Amendment to the Constitution of the United States act as a check

on a legislature enacting a statute reorganizing an administrative

agency and a check on the executive who signed and then implemented

the law. Here, the legislature of Puerto Rico reorganized the

Industrial Commission by reducing the number of Commissioners who

hear workers' compensation claims from twenty-five to five, and the

governor signed the bill and then implemented it. There is no

claim that the governor, in implementing the new legislation, did

not apply the same interpretation of the statute regardless of

political affiliation of the former Commissioners. Under that

uniform interpretation, she concluded that the new statute

eliminated all of their positions. Some of the Commissioners,

terminated from employment, sued in federal court under 42 U.S.C.

§ 1983. The district court dismissed the action. See Torres-

Rivera v. Calderón-Serra, 328 F. Supp. 2d 237 (D.P.R. 2004). We

affirm the judgment of dismissal against the plaintiffs on all

claims.

I.

Within the past decade, the Commonwealth of Puerto Rico

has used three different organizational structures for the

Industrial Commission, the administrative agency which handles

workers' compensation claims. In the years before 1996 (indeed,

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since 1935) the Commonwealth had long structured the Industrial

Commission as having a maximum of five Commissioners. To assist

the Commissioners, there was also a system, put in place since

1969, of hearing examiners who would make recommendations to the

five Commissioners, who would then make a final adjudication of the

claims by majority vote.

However, on July 1, 1996, Governor Pedro Rossello, whose

New Progressive Party (NPP) had recently gained the governorship,

signed Law 63, codified at 11 P.R. Laws Ann. § 8. Law 63 increased

the number of Commissioners from five to twenty-five and provided

each Commissioner with a definite term of ten years in office.

Each Commissioner was appointed by the Governor with the advice and

consent of the Senate. Each Commissioner was given authority to

make a final adjudication of the claims before him or her

independently. Law 63 also stated that Commissioners appointed

prior to its effective date would remain in office until their

original terms expired. Law 63 did not explicitly state what would

happen to the hearing examiners.

There was another change in control of the executive

branch of the Commonwealth in November 2000, when the Popular

Democratic Party (PDP) took over the governor's office. On March

25, 2003, Governor Sila María Calderón-Serra ("Governor Calderón")

signed Law 94, which amended 11 P.R. Laws Ann. § 8 by establishing

a new structure for the Industrial Commission. The preamble to Law

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94 cited problems of great inefficiency with the functioning of the

Industrial Commission and recounted a large number of complaints

from the citizenry about long delays in the handling of cases in

that office. By contrast with Law 63, Law 94 returned the number

of Commissioners to five, to be appointed by the Governor with the

advice and consent of the Senate for fixed terms of six years

(except the Chairman1 of the Commission, whose term ends on

December 31 of the year in which general elections are held). The

law specified that of the five Commissioners, three should be

lawyers, one should be a doctor with "acclaimed knowledge and

interest in the field of occupational medicine" and one should be

"a person of known sympathy for and identification with Puerto

Rico's organized workers' movement."

Despite requests from the minority parties, and unlike

its predecessor statute, Law 63, the legislature put no provisions

in Law 94 as to the fate of the positions of the twenty-five

previous Commissioners who had been appointed before its enactment.

See Torres-Rivera, 328 F. Supp. 2d at 240. Law 94 simply did not

address the status of the incumbent Commissioners. Still, Law 94

employs prospective language to describe the structure of the

Industrial Commission. For example, it states that "[a] commission

1
This position is alternately referred to as "President"
and "Chairman" in the translation of Law 94 and the parties' briefs
and pleadings. For consistency, this opinion uses the term
"Chairman."

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to be called 'Industrial Commission of Puerto Rico' is created,

which will have five (5) Commissioners" (emphasis added). The

statute also created career positions for a group of hearing

examiners, designated by the Industrial Commission's Chairman.2

Those hearing examiners make recommendations to the Commissioners

rather than make final determinations on their own. On April 11,

2003, the Senate approved the Governor's nomination of Gilberto M.

Charriez-Rosario ("Charriez") as Chairman of the Industrial

Commission. Three other new Commissioners assumed office that day.

The fifth Commissioner was not appointed at the time when the

plaintiffs filed this suit.

Charriez lost little time in carrying out the

legislature's reforms. He sent written notices to all of the

former Commissioners informing them that he was the new Chairman of

the Industrial Commission. There was some scuffling with the

former Chairman of the Commission, Basilio Torres-Rivera

("Torres"), who took the position that he was the legal Chairman

until his term expired on June 30, 2006. The details of this

dispute are not pertinent to our present discussion.

2
While the text of the statute does not specify the number
of hearing examiners, all parties assert in their appellate briefs
that the number of hearing examiners is twenty-five.

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 On April 14, 2003, the Secretary of State for the

Commonwealth at the time, Ferdinand Mercado,3 sent letters to all

persons who had occupied the twenty-five Commissioners' positions,

terminating their positions at the Industrial Commission effective

that day.

As frequently happens with such disputes in Puerto Rico,

the matter was brought to federal court.4 Fourteen of the former

Commissioners, including Torres as lead plaintiff, sued.5 The

complaint, brought under 42 U.S.C. § 1983 and Puerto Rico law

asserted a variety of claims in furtherance of their argument that

they could not be removed from their jobs as Commissioners, despite

the restructuring of the Industrial Commission. The first count

alleged that Law 94 was unconstitutional both on its face and as

applied to the plaintiffs because it was void for vagueness and

because it permitted interference with a fundamental First

3
Ferdinand Mercado is not a party to this case. The
complaint describes him as "Interim Governor," perhaps acting in
the absence of other officials.
4
"With each change in administration -- at both the
commonwealth and municipal levels -- the federal district courts in
Puerto Rico are flooded with hundreds of political discrimination
cases, many of which are appealed." Sanchez-Lopez v. Fuentes-
Pujols, 375 F. 3d 121, 126 (1st Cir. 2004).
5
The other plaintiffs were a group of employees of the
Industrial Commission who had occupied trust positions and who had
also been terminated, and the spouses of the Commissioners and the
trust employees and their conjugal partnerships. The claims of
these other plaintiffs are wholly derivative of the claims of the
former Commissioners, and we do not discuss them further.

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Amendment right of the plaintiffs by allowing for political

discrimination. The count also alleged that the acts of the

Governor in designating the new Commissioners were illegal in that

they deprived the old Commissioners of their rights of free speech

and freedom of association.

The second count purported to sound in federal law but

actually was based on Puerto Rico law. It argued that Law 94,

properly interpreted, did not provide for the discharge of the

plaintiffs. The third claim for relief was a federal procedural

due process claim. It was also based on interpretation of Puerto

Rico law, particularly that Law 94 did not revoke those provisions

of Law 63 which provided the plaintiff former Commissioners with

fixed terms. The fourth count was one for deprivation of

substantive due process; it also denied that there was a legitimate

efficiency problem with the operation of the Industrial Commission

which had justified a change in its structure. The fifth claim for

relief purported to be based on the plaintiffs' "protected liberty

interests" and seemed to assert that the plaintiffs' reputations

had been damaged by this action. The sixth cause of action was a

Puerto Rico law claim for damages, under the supplemental

jurisdiction of the federal court, based on Article 1802 of the

Puerto Rico Civil Code.

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 The plaintiffs sought a declaration that Law 94 was

unconstitutional, compensatory damages for lost pay and emotional

distress, punitive damages, and reinstatement to their positions.

The defendants named were Governor Calderón, Cesar R.

Miranda-Rodriguez, Governor Calderón's Chief of Staff, and

Charriez, the new Chairman of the Industrial Commission. The

defendants promptly moved to dismiss on grounds of legislative and

qualified immunity and argued that certain claims failed to state

a claim upon which relief could be granted.

The district court allowed the motion and entered

judgment dismissing the federal claims with prejudice and the state

claims without prejudice on August 5, 2004. See Torres-Rivera, 328

F. Supp. 2d at 244-45. The plaintiffs timely appealed.

II.

Our review of the judgment on the motion to dismiss is de

novo. Arroyo-Melecio v. P.R. Am. Ins. Co., 398 F.3d 56, 65 (1st

Cir. 2005). The plaintiffs have abandoned all arguments on appeal,

save three: (1) that the statute is unconstitutional and that the

district court's (2) legislative immunity and (3) qualified

immunity findings were in error.

A. Constitutionality of the Statute

We address first the plaintiffs' appeal from the denial

of declaratory relief that Law 94 is unconstitutional.

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 The plaintiffs bring Due Process and First Amendment

claims against the statute. They argue that the statute is void

for vagueness because it does not clearly address what is to happen

to their jobs; as well, they argue that it embodied the

legislature's intention to engage in and permitted political

discrimination against the former Commissioners based on their

political affiliation with the NPP, the party of the former

governor.

We reject these arguments. There are no actionable

claims that the enactment of this statute, Law 94, violates either

the plaintiffs' First Amendment or Due Process rights.

We begin with the First Amendment claim. This statute is

neutral on its face and says nothing about the political

affiliations of the persons to be appointed to positions in the

reorganized agency. This statute does not require that only

members of one political party be named Commissioners or be allowed

to work for the Industrial Commission. That would be a very

different case. The statute simply reorganizes the agency, a task

committed to the legislature.6 See Acevedo-Garcia v. Vera-Monroig,

6
This court has often rejected attempts by plaintiffs to
challenge on First Amendment grounds loss of employment due to
reorganizations of governmental agencies, whether the
reorganization is effectuated by the legislature, by the governing
board of the agency, or by the administrative head of the agency.
See, e.g., Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1 (1st Cir.
2000) (municipal ordinance repealing prior ordinance granting
career status to employees); Angulo-Alvarez v. Aponte de la Torre,
170 F.3d 246 (1st Cir. 1999) (mayor and municipal assembly adopting

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204 F.3d 1, 8 (1st Cir. 2000) ("Employment decisions generally are

administrative except when they are accomplished through

traditional legislative functions such as policymaking and

budgetary restructuring that strike at the heart of the legislative

process." (internal quotation marks omitted)).

The plaintiffs' argument assumes there is an absolute

right under the First Amendment to be protected against political

affiliation discrimination. But "[t]he prohibition on encroachment

of First Amendment protections is not an absolute." Elrod v.

Burns, 427 U.S. 347, 360 (1976). The reason it is not absolute is

that there "is the need for political loyalty of employees . . . to

the end that representative government not be undercut by tactics

obstructing the implementation of policies of the new

administration, policies presumably sanctioned by the electorate."

Id. at 367. The First Amendment political affiliation right

described in the line of cases from Elrod to Branti v. Finkel, 445

U.S. 507 (1980), and Rutan v. Republican Party of Ill., 497 U.S. 62

(1990), is cabined by an exception designed to give room to elected

representatives to make policy choices reflective of their party

platforms. See Branti, 445 U.S. at 517-18; Rutan, 497 U.S. at 74.

plan to privatize department of maintenance and transportation);
Vazquez v. Lopez-Rosario, 134 F.3d 28 (1st Cir. 1998) (governing
board of commonwealth agency establishing reorganization plan which
eliminated position of employee of government contractor).

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Law 94 is an expression of policy choices made by elected

representatives.

In the face of this statutory neutrality, the plaintiffs

attempt to fashion a claim that the reorganization was both

intended to and had the effect of accomplishing political

affiliation discrimination. Even assuming dubitante such a claim

could be made here, it does not advance the plaintiffs' case.

As to effect, there is no statutory invalidity from the

fact that the statute may, in the end, lead to a situation in which

the impact of the reorganization will be to disproportionally

terminate the employment of members of one political party. We

have rejected the application of a disparate impact theory in First

Amendment political affiliation cases. "If uniformly applied

personnel practices, predicated on legitimate reasons, result in

terminations, those terminations are not unconstitutional because

those affiliated with one political party are disproportionately

impacted." Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 140 (1st

Cir. 2004).7

7
Even in the Fourteenth Amendment Equal Protection area,
a showing of disproportionate impact alone is not enough to
establish a constitutional violation. See Washington v. Davis, 426
U.S. 229, 239 (1976); Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir.
1997). Although evidence of adverse effect may be pertinent to
claims of gender- or race-based discrimination under the Equal
Protection Clause, a plaintiff must still show purposeful
discrimination. See Personnel Adm'r v. Feeney, 442 U.S. 256, 274
(1979).

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 As to intent, here the legislature explicitly stated its

intent behind Law 94: it found the expanded Commission system

under Law 63 did not function effectively, leading to delays and

complaints from the citizenry. We will not look behind that

express statement of intent as to a law neutral on its face. Cf.

Hill v. Colorado, 530 U.S. 703, 719-20 (2000) (content-neutrality

inquiry in First Amendment context ends if stated legislative

reason is content-neutral and the statute is facially neutral);

McGuire v. Reilly, 386 F.3d 45, 57 (1st Cir. 2004) (same); McGuire

v. Reilly, 260 F.3d 36, 44 (1st Cir. 2001) (same).

The plaintiffs' void-for-vagueness argument is equally

hopeless. The vagueness claim fails even if untethered from its

dependence on its faulty First Amendment assumptions. The

vagueness that the plaintiffs point to is a vagueness about the

fate of the old Commissioners in office at the time of the

enactment of the statute. Law 94 does not regulate speech and so

raises no chilling effect concerns that people will steer too far

clear of prohibited speech. That is one area where the void-for-

vagueness doctrine is used. Ridley v. Mass. Bay Transp. Auth., 390

F.3d 65, 93-94 (1st Cir. 2004). Nor does the statute impose

penalties on the plaintiffs for any conduct, but fail to give them

fair warning that any such conduct would be impermissible, another

area where the doctrine is used. Id. Further, the source of

vagueness that the plaintiffs purport to identify raises no

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concerns about excessive discretion that could be used in a

discriminatory manner. See id. at 94.

The plaintiffs' void-for-vagueness claims are not made

any more meritorious by the fact that when plaintiff Torres refused

to vacate his office on Charriez' request, Charriez had Torres

indicted for a claimed misdemeanor charge of usurping the position

of Chairman (he was acquitted) and a felony charge of illegally

retaining government property and documents (the charge was

promptly dismissed). Torres was not arrested under Law 94 but

under Puerto Rico's criminal laws.

B. Claims Against Individual Defendants for Damages

By contrast with the claim for injunctive or declaratory

relief as to the constitutionality of the statute, the claims

against the individual defendants for damages are subject to the

doctrines of legislative and qualified immunity.

1. Signing of Law 94 By Governor

A state legislature (and for these purposes Puerto Rico

is treated as a state) enjoys common law immunity for its

legislative acts, an immunity similar to that accorded members of

Congress under the Speech or Debate Clause. Supreme Court v.

Consumers Union of the United States, Inc., 446 U.S. 719, 732

(1980). The question we are faced with here is extension of this

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doctrine to the executive who signs legislation, thus making it

law.8

Although no legislators are named as defendants, the

plaintiffs bring a claim against Governor Calderón for having

signed Law 94. The Supreme Court has held that "officials outside

the legislative branch are entitled to legislative immunity when

they perform legislative functions." Bogan v. Scott-Harris, 523

U.S. 44, 55 (1998). The Supreme Court of a state is entitled to

legislative immunity when its members act in a legislative capacity

to promulgate a State Bar Code. Consumers Union, 446 U.S. at 734.

As well, the President acts legislatively when he approves or

vetoes bills passed by Congress. See Bogan, 523 U.S. at 55; cf.

Edwards v. United States, 286 U.S. 482, 490 (1932) (noting "the

legislative character of the President's function in approving or

disapproving bills"). Likewise, a governor who signs into law or

vetoes legislation passed by the legislature is also entitled to

absolute immunity for that act. Women's Emergency Network v. Bush,

8
The district court held that "Law 94 being classified as
[a] legislative act by its nature, [the Governor's] signing it into
law is protected by absolute legislative immunity and all claims
against her stemming from this act must be dismissed." Torres-
Rivera, 328 F. Supp. 2d at 243. We understand the court to have
held only that the signing of Law 94 was protected by legislative
immunity. The court later held that any actions by the defendants
were protected by qualified immunity "insofar as they were carried
out in accordance with or for the implementation of Law 94." Id.
at 244. The plaintiffs misapprehend the ruling when they argue
that the district court held that the Governor's implementation of
the law was covered by legislative immunity.

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323 F.3d 937, 950 (11th Cir. 2003) ("Under the doctrine of absolute

legislative immunity, a governor cannot be sued for signing a bill

into law."); cf. Smiley v. Holm, 285 U.S. 355, 372-73 (1932)

(recognizing a governor's signing or vetoing of a bill is a part of

the legislative process).

The plaintiffs argue that this legislative immunity may

be abrogated if the enactment of the legislation was motivated by

impermissible intent. That argument was expressly rejected by the

Supreme Court in Bogan, which extended absolute legislative

immunity from suit under § 1983 to local legislators for their

legislative activities. Bogan, 523 U.S. at 54. The Court held

that even where a jury found that constitutionally sheltered speech

was a substantial or motivating factor behind an ordinance which

eliminated a city department with only one employee, the mayor and

head of the city council were absolutely immune from suit for

damages under legislative immunity. Id. The Court held that

before one asked about the defendants' subjective intent there was

the "logically prior question of whether their acts were

legislative." Id.

In the logically separate and prior inquiry as to whether

the acts are legislative, the only inquiry relevant in this case,

intent is not part of the analysis.9 The Court instructed in

9
Of course, not everything a legislator does, even if done
regularly, is a legislative act, Doe v. McMillan, 412 U.S. 306, 313
(1973), and not all conduct relating to the legislative process is

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Bogan: "Whether an act is legislative turns on the nature of the

act, rather than on the motive or intent of the official performing

it." Id. The Court had little difficulty in concluding that the

ordinance at issue had all the hallmarks of traditional

legislation:

The ordinance reflected a discretionary,
policymaking decision implicating the
budgetary priorities of the city and the
services the city provides to its
constituents. Moreover, it involved the
termination of a position, which, unlike the
hiring or firing of a particular employee, may
have prospective implications that reach well
beyond the particular occupant of the office.
And the city council, in eliminating [the
department in which the plaintiff was the sole
employee], certainly governed "in a field
where legislators traditionally have power to
act."

Id. at 55-56 (quoting Tenney v. Brandhove, 341 U.S. 367, 379

(1951)); see also Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 7-8

(1st Cir. 2000) (distinguishing the legislative activities in Bogan

from non-immunized administrative decisions made by officials

implementing a layoff plan: the plan's procedures and criteria were

not observed; terminated employees were from one political party

and were replaced by employees from the other political party; and

a legislative act, see Gravel v. United States, 408 U.S. 606, 620
(1972) (Legislative immunity did not extend to "privilege illegal
or unconstitutional conduct beyond that essential to foreclose
executive control of legislative speech or debate and associated
matters such as voting and committee reports and proceedings.");
Powell v. McCormack, 395 U.S. 486, 503 (1969).

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there was evidence of political harassment). Law 94 also has all

the hallmarks of traditional legislation.

Tenney is even more explicit that there can be no inquiry

into legislative motive no matter how corrupt, for purposes of

§ 1983 damages liability, so long as the state legislature is

acting in traditional legislative areas. Tenney, 341 U.S. at 377

("The claim of an unworthy purpose does not destroy the privilege

[of legislative immunity]. . . . [I]t [is] not consonant with our

scheme of government for a court to inquire into the motives of

legislators . . . ."). The same is true of the act of a governor

in signing legislation. The remedies are in the political

processes.

2. Claims Based on Actions By Executive to Implement Law 94

The plaintiffs also seek damages for the actions taken by

Governor Calderón, Miranda-Rodriguez (Governor Calderón's Chief of

Staff), and Charriez to implement the new legislation: the naming

of a new Chairman and new Commissioners, the notice to the

plaintiffs that their positions had been eliminated, and the

consequent termination of their employment.

The actions by the executive officials (including the

governor) taken to implement legislation are not shielded by

legislative immunity. Under Scheur v. Rhodes, 416 U.S. 232 (1974),

these implementation actions (as opposed to the governor's signing

the law) should be evaluated under the qualified immunity doctrine,

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rather than under legislative immunity. Id. at 247-48. The

district court properly did so.

This circuit usually evaluates qualified immunity claims

under a three-part test. See, e.g., Riverdale Mills Corp. v.

Pimpare, 392 F.3d 55, 60-61 (1st Cir. 2004). The first part of the

test asks: "Taken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer's

conduct violated a constitutional right?" Id. at 61 (internal

quotation marks omitted). In the second stage, the question is

"whether the right was clearly established at the time of the

alleged violation such that a reasonable officer would be on notice

that his conduct was unlawful." Id. (internal quotation marks and

alteration omitted). And in the last stage, we ask "whether a

reasonable officer, similarly situated, would understand that the

challenged conduct violated the clearly established right at

issue." Id. (internal quotation marks omitted).

As we ordinarily must do, we start first with the

question of whether the plaintiffs have stated a claim for

violation of the First Amendment at all. See Saucier v. Katz, 533

U.S. 194, 201 (2001). We conclude they have not.

Under the plain language of Law 94, the Governor was

entitled to appoint a Chairman of the Commission. The First

Amendment did not require the Governor to make her choice from the

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existing twenty-five Commissioners. The same is true of the

appointment of the other three Commissioners.

The claim concerning termination of the plaintiffs'

employment, on different facts, could come out differently. If the

plaintiffs had argued that the defendants had selectively replaced

some of the previous Commissioners, but not others, using political

affiliation as the criteria, the plaintiffs may have stated a

claim. See Acevedo-Garcia, 204 F.3d at 10-11; Rutan, 497 U.S. at

65-66. But the plaintiffs have made no such claim; instead, the

pleadings show that all Commissioners were terminated on the same

neutral principle: that Law 94 eliminated the positions of all

twenty-five previous Commissioners.

Whether the articulated neutral principle -- that the

statute eliminated the positions -- is correct or not may raise a

question of Puerto Rico law, but it does not state a First

Amendment claim. There is no claim based on the First Amendment

for disparate impact based on the political affiliation doctrine

because "[i]t is in the nature of a change in administration that

job actions by the new party in power will have a disparate impact

on members of the outgoing party." Sanchez-Lopez v. Fuentes-

Pujols, 375 F.3d 121, 140 (1st Cir. 2004). To put it differently,

even if under Puerto Rico law the plaintiffs turn out to have some

sort of tenure, they still have no First Amendment claim. All

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Commissioners' positions were eliminated on the basis that there

was no such tenure; therefore, there was no discrimination.

III.

The judgment of dismissal is affirmed. Appellees are

awarded their costs on appeal.

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