United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 97-1489
NYLSA ACOSTA-OROZCO, et al.,
Plaintiffs, Appellants,
v.
CARMEN RODRIGUEZ-DE-RIVERA, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose A. Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Manuel Alvarado for appellants.
Roxanna Badillo-Rodriguez, Assistant Solicitor
General, Commonwealth of Puerto Rico, with whom Carlos Lugo-
Fiol, Solicitor General of the Commonwealth of Puerto Rico
and Edda Serrano-Blasini, Deputy Solicitor General, were on
brief, for appellees.
December 22, 1997
LYNCH, Circuit Judge. This is another in a series
LYNCH, Circuit Judge.
of cases following the assumption of power by the New
Progressive Party (NPP) in Puerto Rico in elections held in
November 1992. In these cases, plaintiffs are government
employees who are members of the losing Popular Democratic
Party (PDP) who assert that they were terminated or demoted
from their jobs because of their political affiliation.1
This court faced an earlier wave of such cases when PDP
candidates won election in 1984 and NPP members complained
that their government jobs suffered because of their party
membership.
In this case, the PDP-affiliated plaintiffs are six
long-term government employees who were demoted from their
civil service positions as Managerial Coordinators in the
Commonwealth's Department of Social Services, now known as
the Department of the Family. They say their duties are now
being performed by NPP members who have been designated as
aides to the Regional Directors of the agency. The district
court granted summary judgment for defendants on the theory
that plaintiffs had not made out a prima facie case and that
defendants had established they would have taken action
anyway for non-political reasons, regardless of plaintiffs'
1. See, e.g., Nieves-Villanueva v. Soto-Rivera, No. 96-1285
(1st Cir. 1997); In re Martinez-Catala, 1997 WL 693558 (1st
Cir. 1997); Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (1st
Cir. 1997); Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7 (1st
Cir. 1996).
-2-
2
political affiliation. Because we believe there are material
facts in dispute, we reverse and remand.
I.
I.
Our review of the district court's grant of summary
judgment is de novo. Sears, Roebuck & Co. v. Goldstone &
Sudalter, P.C., 128 F.3d 10, 15 (1st Cir. 1997). We state
the facts in the light most favorable to the party opposing
summary judgment. See id. at 12.
Plaintiffs are six career civil service employees
of the former Department of Social Services of Puerto Rico,
now known as the Department of the Family, all of whom have
been working at the Department for over twenty years. All
plaintiffs belong to the PDP, the party of former Governor
Rafael Hernandez Colon, who held office for two terms between
1984 and 1992. In a process that began in late 1987, a new
supervisory position of "Managerial Coordinator" was created
within the Department. Between 1988 and 1992, the six
plaintiffs and several others were promoted to this new
position.
The Managerial Coordinator classification was a
middle level managerial position created to provide
assistance to the several Regional Directors. The Regional
Directors, in turn, report to the Secretary, a member of the
Governor's cabinet. The Managerial Coordinator job was
established as a career position under Puerto Rico's civil
-3-
3
service laws, which require that such an employee be selected
strictly on merit and can only be removed for cause. See 3
L.P.R.A. 1301, 1331-1338; Agosto-de-Feliciano v. Aponte-
Roque, 889 F.2d 1209, 1213 n.3 (1st Cir. 1989) (en banc).
The Regional Directors, in contrast, were classified as
"confidential employees," who are involved in the formation
of public policy and render direct services to the head of
the department, the Secretary of Social Services. See 3
L.P.R.A. 1350; Agosto-de-Feliciano, 889 F.2d at 1213 n.3.
The Central Office of Personnel Administration (COPA), the
agency charged with administering Puerto Rico's civil service
laws, approved the creation of the Managerial Coordinator
position. In approving the position, the civil service
agency necessarily concluded that political affiliation was
not a necessary prerequisite for holding a Managerial
Coordinator position.
The Director of COPA described the position
generally, in a job description written in 1988, as entailing
"managerial and administrative work of great complexity and
responsibility in the coordination and evaluation of the
. . . activities of the Local Offices . . . ." Plaintiffs'
immediate superiors were the Regional Directors. On paper,
according to the COPA job description, the official duties of
a Managerial Coordinator included offering technical advice
on the agency's work plans, keeping the Regional Directors
-4-
4
and the Secretary informed of local office operations,
investigating and reporting on grievances of employees,
monitoring local offices' expenses, training local office
supervisors, analyzing statistical reports, preparing reports
about evaluation visits to local offices, and other duties.
In practice, plaintiffs' duties as Managerial Coordinators
ranged widely, and included coordinating inter-agency
programs, attending to client complaints, substituting for
the Regional Director, planning professional and social
activities, and signing per diem and mileage reimbursement
checks. Plaintiffs' positions "provid[ed] support functions
to the Regional Directors, analogous to those of an aide."
In the 1992 general election, the PDP was defeated
by the rival NPP, and the present governor, Pedro Rosello,
came to power. Governor Rosello named defendant Carmen
Rodriguez-de-Rivera as Secretary of Social Services.
Rodriguez-de-Rivera, in turn, hired the Regional Directors.
In the first month of the new administration, the Regional
Directors began to take away many of the duties and functions
that the Managerial Coordinators had been performing,
assigning those duties to other employees who were NPP
activists and had been designated, officially or
unofficially, as aides to the Regional Directors.
Additionally, the Regional Directors took away from the
Managerial Coordinators several perquisites that had been
-5-
5
associated with that position, such as parking, telephones
and office space. Defendants were aware of plaintiffs' PDP
political party affiliation, and the aides to whom
plaintiffs' duties were assigned were all politically active
supporters of the NPP party, newly in power.
In February 1993, one Managerial Coordinator wrote
defendant Rodriguez-de-Rivera, to complain that the new
Regional Directors had taken away the duties and perquisites
of her position. Rodriguez-de-Rivera's reaction was to
launch an investigation of the complainant and the other
Managerial Coordinators. The stated purpose of the
investigation was to determine whether the creation of the
position and the selection of candidates had been proper.
Plaintiffs contend that the real purpose of the investigation
was to provide a legal cover for the impending demotions.
In May 1993, Secretary Rodriguez-de-Rivera
dispatched Carmen Salivia, an official of the Social Services
Department, to conduct field interviews with the Managerial
Coordinators. During the interviews, the Managerial
Coordinators described the duties of their positions -- now
being performed by NPP-affiliated aides -- and said they
reported to the Regional Directors. Salivia completed the
interviews and delivered her notes to defendant Enrique
Gonzalez-Polanco, Assistant Secretary in Charge of Personnel,
or to Mrs. Carmen Haddock, who worked in the office. Salivia
-6-
6
drew no conclusions and her investigation was terminated when
she went on vacation.
Rodriguez-de-Rivera also hired Francisco Cappas, an
outside personnel consultant, to review the matter. Although
Salivia understood that her notes would be used in the Cappas
investigation, the interview notes were never given to Cappas
before he completed his reports. Cappas apparently held no
position within the government.
In June 1993, Cappas submitted two letter reports
to Rodriguez-de-Rivera. In the first, he concluded that the
position of Managerial Coordinator should be declared a legal
nullity because it had been improperly created and was
duplicative of the duties of the Regional Directors.
Specifically, he concluded that the Managerial Coordinators
were in reality policymaking officials who reported directly
to the Secretary, not to the Regional Directors, and that the
position should therefore have been classified as
"confidential" rather than as a career civil service post.
Under Puerto Rico law, "confidential employees" are only
those employees who report directly to the head of the
agency. See 3 L.P.R.A. 1350 (aides to the heads of
departments, but not aides to regional directors, included in
list of confidential employees). These conclusions are
facially contrary to the determination made by COPA, the
-7-
7
civil service agency, when it approved the creation of the
positions.2
In his second report, Cappas concluded that many of
the Managerial Coordinators had been improperly promoted,
even though COPA had approved many of these promotions at the
time. Cappas recommended that the Managerial Coordinators be
given a hearing and -- if they could not counter his initial
assessment -- that they be demoted to their previous
positions.
In December 1993, Rodriguez-de-Rivera asked the
Secretary of Justice of Puerto Rico for an opinion on the
legality of the Managerial Coordinators' appointments,
repeating the allegations of the Cappas reports. In May
1994, the Secretary of Justice declined to give an opinion,
noting that the legality of the Managerial Coordinators'
appointments depended on the factual accuracy of those
allegations, not on any question of law, and referred that
2. Cappas said that the COPA document describing the
position had originally stated that the position reported to
the Secretary, but that this document was altered with liquid
paper to state that the position reported to the Regional
Directors. Cappas drew the inference that COPA had conspired
with the Managerial Coordinators to alter the documents.
There is no evidence that he considered another plausible
explanation --that the alteration was a correction of a
mistake in the original -- and Cappas was unaware of
plaintiffs' statements to Salivia in the field interviews
that they had always reported to the Regional Directors. Of
course, a reasonable jury could credit the plaintiffs'
testimony and discredit the defendants' forgery theory.
-8-
8
issue to COPA, whose special expertise is the administration
of Puerto Rico's civil service laws.
Rodriguez-de-Rivera then requested the Director of
COPA and the Director of the Budget and Management Office
(BMO) to determine that the position of Managerial
Coordinator was a nullity, sending a copy of her letters to
Governor Rosello and his staff. The COPA director responded
by disputing several of the claims contained in the Cappas
reports, and by refusing to nullify the position or
promotions of the Managerial Coordinators.
In contrast with the civil service agency, the BMO
director responded by stating that he could find no document
authorizing budgetary approval for the position, and drew the
inference that the position was therefore illegally created.3
In spite of the COPA opinion, on August 9, 1994,
Rodriguez-de-Rivera issued an administrative order providing
"[t]hat all positions classified as Managerial Coordinators
in the Department are null." Plaintiffs were not afforded an
administrative hearing prior to this declaration, or given an
opportunity to dispute the allegations contained in the
Cappas reports, although this had been recommended by Cappas.
3. There is no evidence that the BMO director considered the
possibility, also plausible, that the proper document from
six years earlier simply had not been found. Plaintiffs have
produced documents that tend to show that the BMO approved
the Managerial Coordinator position and that there has always
been budgetary authority for salaries and expenses associated
with that position.
-9-
9
Each of the plaintiffs was thereafter demoted to the
positions they had previously held within the agency. As a
result of the nullification order, each of the plaintiffs
suffered a loss of salary in addition to making permanent and
official their previous de facto loss of position.
Plaintiffs say that their significant job functions
have been assumed by other persons, all NPP members, all in
the position of aides to the Regional Directors. It is our
understanding that aides to persons at the level of regional
directors cannot be classified as "confidential" (or
political) employees within the Puerto Rico personnel system.
See 3 L.P.R.A. 1350.
II.
II.
In November 1994, plaintiffs filed suit, alleging
violations of their First Amendment rights of political
affiliation under Elrod v. Burns, 427 U.S. 347 (1976), Branti
v. Finkel, 445 U.S. 507 (1980) and Rutan v. Republican Party
of Ill., 497 U.S. 62 (1990). Plaintiffs also alleged that
they were deprived of a property interest without due process
of law, and that their demotions violated the constitution
and statutes of the Commonwealth of Puerto Rico. On January
27, 1997, the district court granted summary judgment for
defendants, finding that plaintiffs had not shown a causal
connection between their demotions and their political
affiliation. The district court also reasoned that
-10-
10
defendants' stated rationale for the demotions --
departmental efficiency and respect for the personnel laws --
was sufficient to compel a finding that defendants had a
defense under Mount Healthy City Sch. Dist. v. Doyle, 429
U.S. 274 (1977), even if political affiliation had played
some part in their decision.
III.
III.
Plaintiffs have produced evidence sufficient to
support a prima facie case of political party discrimination.
The First Amendment prohibits the government from demoting an
employee for patronage purposes unless political party
affiliation is an appropriate requirement for that position.
See Rutan, 497 U.S. at 64; Nereida-Gonzalez v. Tirado-
Delgado, 990 F.2d 701, 705 (1st Cir. 1993). A plaintiff who
was demoted from a job for which a party affiliation
requirement is inappropriate "may ordinarily forestall
summary judgment by pointing to evidence in the record which,
if credited, would permit a rational factfinder to conclude
that a demotion occurred and that it stemmed from a
discriminatory animus." Nereida-Gonzalez, 990 F.2d at 706.
There is no dispute that plaintiffs were demoted;
the "nullity" decree4 eliminated their supervisory positions
4. Of course, "a new administration [cannot] use the
'nullity' of appointments doctrine as a cover of discharges,
transfers, and discrimination based solely on political
affiliation." Santiago-Negron v. Castro-Davila, 865 F.2d
431, 436 (1st Cir. 1989).
-11-
11
altogether and returned them to the jobs they held
previously, which are of lower rank and salary. As the
subjects of demotion, "which involve reductions in pay and
official rank," Agosto-de-Feliciano, 889 F.2d at 1218 n.8,
plaintiffs plainly need not establish that their new "work
situation [is] unreasonably inferior to the norm for the
position" such that "the new work conditions would place
substantial pressure on even one of thick skin to conform to
the prevailing political view." Id. at 1218.5
5. The "unreasonably inferior" doctrine of Agosto-de-
Feliciano was expressly limited to complaints of
discrimination short of actual demotion. See id. at 1218
n.8. Thus we need not consider whether that doctrine
survives the Supreme Court's extension of First Amendment
protections against patronage dismissals to "promotion,
transfer, recall, and hiring decisions." Rutan, 497 U.S. at
79. "It is an interesting question whether some vestige of
[the 'unreasonably inferior' rule] survives Rutan, thereby
providing a sort of . . . intermediate First Amendment haven
for employees wounded by slings and arrows less damaging than
those [official actions] described by the Rutan court."
Nereida-Gonzalez, 990 F.2d at 705. That question must be
answered another day.
The Rutan Court suggested in dicta that any adverse
action against a public employee, no matter how minor,
violates the First Amendment if it is in retaliation for an
employee's exercise of First Amendment rights. See Rutan,
497 U.S. at 76 n.8 ("The First Amendment . . . protects state
employees . . . from even an act of retaliation as trivial as
failing to hold a birthday party . . . when intended to
punish [them] for exercising [their] free speech rights."
(internal quotation marks and citation omitted)). We do not
regard such colorful rhetoric as necessarily foreclosing
something like the "unreasonably inferior" rule for personnel
actions short of demotions or transfers. The Rutan Court was
concerned with "deprivations less harsh than dismissal that
nevertheless press state employees and applicants to conform
their beliefs and associations to some state-selected
orthodoxy," id. at 75, a formulation similar to Agosto-de-
Feliciano's standard that "the new work conditions would
-12-
12
Viewed in the light most favorable to the
plaintiffs, the summary judgment record amply demonstrates
that a rational factfinder could conclude that the demotions
stemmed from a discriminatory animus. In this case, it was
uncontested for summary judgment purposes that the plaintiffs
were all members of the adverse party, that their superiors
knew this, and that their duties were given to active
supporters of the party in power. Of course, the Supreme
Court has cautioned that the mere fact that an adverse action
was taken after an employee exercises First Amendment rights
is not enough by itself to establish a prima facie case. See
Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342, 2352
(1996). "Merely juxtaposing a protected characteristic --
someone else's politics -- with the fact plaintiff was
treated unfairly is not enough to state a constitutional
claim." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
58 (1st Cir. 1990) (citation omitted).
Nevertheless, a plaintiff need not produce direct
evidence of discriminatory treatment (a so-called "smoking
gun") to establish a prima facie case of politically
discriminatory demotion. We have reversed entry of summary
judgment in favor of defendants in cases where plaintiffs
place substantial pressure on even one of thick skin to
conform to the prevailing political view." Agosto-de-
Feliciano, 889 F.2d at 1218. We leave the resolution of any
conflict in the standard for such adverse personnel actions
to some future case.
-13-
13
have produced sufficient evidence of a discriminatory animus
through circumstantial evidence. See, e.g., Rivera-Ruiz v.
Gonzalez-Rivera, 983 F.2d 332, 335 (1st Cir. 1993);
Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39-40 (1st
Cir. 1993); Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43
(1st Cir. 1992). In Anthony v. Sundlun, 952 F.2d 603 (1st
Cir. 1991), this court noted:
[T]he appellants' argument seems to be
that political favoritism must be proved
by direct evidence. We disagree.
Victims of heavy-handed uses of the
spoils system are not limited to redress
in only those (relatively rare) instances
in which a "smoking gun" can be produced.
To the exact contrary, we have held, time
and again, that circumstantial evidence
alone can support a finding of political
discrimination.
Id. at 605 (citing cases).
In this case, plaintiffs presented much more than
the mere fact that they were demoted by supervisors of a
different party. First, the reason given for the supposed
nullity of the Managerial Coordinators' appointments was that
their positions were improperly classified as civil service
rather than "confidential" positions. This suggests that
defendants believed it was appropriate to take political
party affiliation into account in deciding to eliminate the
Managerial Coordinators and transfer their duties to the new
aides to the Regional Directors. Indeed, that is exactly
what plaintiffs say happened: their duties were transferred
-14-
14
to NPP members. This happened although a jury could readily
find the position was appropriately classified as a civil
service position.
Second, a reasonable jury could find Rodriguez-de-
Rivera's reaction to the initial complaint from a PDP member
that her rights under the civil service laws were being
violated -- to launch an investigation of the complainant --
to be evidence of political discrimination.
Third, the conduct of that investigation, including
the failure to apprise Cappas of the Managerial Coordinators'
statements that they reported to the Regional Directors,
could support a reasonable inference that it was not
conducted fairly, but rather was simply intended to provide a
legal pretext for a foreordained decision to demote the
plaintiffs.
Fourth, the failure to afford plaintiffs a hearing
to contest the allegations concerning the alleged "nullity"
of their appointments and promotions could likewise fairly
imply that the Department was uninterested in the truth of
the controversy.
Finally, Rodriguez-de-Rivera's disagreement with
the advice of COPA, Puerto Rico's civil service commission,
casts serious doubt on the supposed "nullity" of the
plaintiffs' appointments or promotions and an inference could
-15-
15
be drawn that her decision was in fact motivated by an
unlawful patronage objective.
IV.
IV.
The district court did not rest its decision
entirely on its view of plaintiffs' prima facie case,
however, but decided that defendants had established that
they would have taken the same action regardless of
plaintiffs' political affiliation for what it considered
"credible policy reasons" of departmental efficiency. This,
the district court reasoned, established a valid defense
under Mount Healthy. The district court noted what it
considered "a logical inconsistency" in plaintiffs' claims of
political discrimination. Observing that the record was
unclear whether every Managerial Coordinator was a member of
the PDP, the district court reasoned that political diversity
among the Managerial Coordinators undercut plaintiffs' claims
of political discrimination.6 The district court added that,
6. Of course, political diversity among the Managerial
Coordinators would not doom plaintiffs' claim. Defendants
cannot prevail simply by showing that a desire to reward
their political supporters, rather than a desire to punish
their political opponents, underlay their decision. Either
motive may produce unlawful results. The First Amendment
condemns "the coercion of belief that necessarily flows from
the knowledge that one must have a sponsor in the dominant
party in order to retain one's job." Branti v. Finkel, 445
U.S. 507, 516 (1980). That coercion is equally unlawful when
it is directed toward apolitical career employees as when it
is directed towards a party's political opponents. See
Bennis v. Gamble, 823 F.2d 723, 731-32 (3d Cir. 1987). That
a party chooses to reward its followers with good jobs
inevitably affects those who are not followers and who see
-16-
16
alternatively, if the positions were filled exclusively with
PDP members, that "would indicate that the position served
some political purpose, and was thus a 'de confianza,' or
trust position," as the Cappas report had claimed.
The burden of persuasion is on the Secretary to
establish a Mount Healthy defense. "Summary judgment would
have been warranted . . . only if defendants' evidentiary
proffer compelled the finding that political discrimination
did not constitute a 'but for' cause for the demotion."
Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st Cir. 1994). Here,
there are significant disputes of material fact which
preclude a finding on summary judgment for defendants.
Defendants' evidence that their decision was
motivated by a concern for departmental efficiency that would
have resulted in the same personnel action regardless of
plaintiffs' political affiliation is both disputed and far
from conclusive. First, Cappas's finding that the existence
of the Managerial Coordinators interrupted the free flow of
the agency hierarchy was based on a view that plaintiffs
reported to the Secretary, not to her subordinates, the
Regional Directors. Plaintiffs have successfully put this
conclusion into doubt through their sworn statements to the
their upward mobility in the agency thwarted in very concrete
ways. Here, plaintiffs say their duties were assumed by NPP
members. Rutan expressly discussed the effect on First
Amendment rights of employees left in such dead-end jobs.
See Rutan, 497 U.S. at 73.
-17-
17
contrary. Second, plaintiffs, in their affidavits, say that
their duties and responsibilities have been transferred to
new aides to the Regional Directors associated with the NPP.
If this is true, it calls into question the Department's
"efficiency" rationale, as the addition of new aides
undercuts any argument that the positions were eliminated to
save departmental resources.
Of course, defendants' contention that plaintiffs'
demotions were the result of a valid concern for departmental
efficiency and regularity -- even if political discrimination
was a "substantial factor" in the decision -- is a viable
defense at trial. To establish that defense, defendants must
show that the allegedly bona fide reasons underlying the
demotions were sufficient by themselves to justify the
decisions. After Rutan, it is clear that if defendants
thought that plaintiffs' political beliefs alone would
prevent them from carrying out the department's policy, that
is not an acceptable reason for the demotions. "A
government's interest in securing employees who will loyally
implement its policies can be adequately served by choosing
or dismissing certain high-level employees on the basis of
their political views." Rutan, 497 U.S. at 74 (citations
omitted).7 On the other hand, if defendants can establish
7. The posture of this case makes it inappropriate to
conduct a full-scale examination of the so-called
"changeover" or "reorganization" defense established by
-18-
18
that plaintiffs opposed departmental policy and that they
actively attempted in fact to thwart it, that could be
sufficient to establish a Mount Healthy defense. See Rutan,
497 U.S. at 74 ("A government's interest in securing
effective employees can be met by discharging, demoting or
transferring staff members whose work is deficient.").
There appears to be lurking in the wings of this
case, but not on stage, a suggestion by the defendants that
if the plaintiffs were removed for political reasons, and if
their duties continued and were assigned to NPP members, that
those duties nevertheless fall within the Elrod-Branti
exception because those duties are sensitive enough to make a
political affiliation requirement appropriate. However,
defendants did not raise the Elrod-Branti exception issue in
their responsive pleading or in their motion for summary
judgment. The district court mentioned the Elrod-Branti
exception despite the defendants' failure to articulate it,
but did not resolve the issue. Rather, the district court
rested its decision on its view that plaintiffs had not
established a prima facie case. The issue has not been
Agosto-de-Feliciano, 889 F.2d at 1220-22 in light of Rutan.
However, we can say that, after Rutan, a public employer may
not assign tasks to supporters of the party in power because
it believes, solely on the basis of their party affiliation,
that such employees will more loyally implement its policies
-- notwithstanding language in Agosto-de-Feliciano that might
be read to support such a decision. See Agosto-de-Feliciano,
889 F.2d at 1221.
-19-
19
fairly briefed on appeal. This court does not decide issues
on appeal that have not been properly raised before the
district court. See McAleer v. Smith, 57 F.3d 109, 115 (1st
Cir. 1995). Although the issue of the Elrod-Branti exception
is somewhat related to the Secretary's contention that the
positions were illegally created in part because they should
have been classified as "confidential" positions under Puerto
Rico law, it is by no means the same argument. See Roldan-
Plumey, 115 F.3d at 64-65 (rejecting government's claim that
political affiliation requirement is permitted despite Puerto
Rico's classification of position as "confidential.").
Until the contours of the case are clear, we are
reluctant, as we have been invited to do, to engage in
further analysis of the effects of Rutan on the so-called
"changeover" or "reorganization" defense as outlined in
Agosto-de-Feliciano, 889 F.2d at 1220-22.
Finally, we note that, if plaintiffs were
originally classified appropriately as career civil service
employees, their claims under the Due Process Clause and
under the constitution and laws of Puerto Rico survive
independently of their First Amendment claim. If plaintiffs
reported to the Regional Directors, as they claim, they were
apparently classified appropriately as career employees and
are therefore protected against political discharge under the
civil service laws of Puerto Rico. See 3 L.P.R.A. 1301,
-20-
20
1331-1338. The Puerto Rico legislature may, of course,
establish a civil service system that provides greater
protection against political discrimination than the First
Amendment. Plaintiffs may have claims under the Constitution
of Puerto Rico as well. Cf. Jimenez-Fuentes, 807 F.2d at
249-250 (Torruella, J., dissenting) (noting that Supreme
Court of Puerto Rico grants broad protection against
political discrimination, perhaps broader than this circuit's
interpretation of the First Amendment); Raffucci-Alvarado,
816 F.2d at 822-23 (Torruella, J., dissenting) (same).
Likewise, because of plaintiffs' tenured status
under Puerto Rico law, their summary demotions could raise a
claim under the Due Process Clause if their appointments were
proper. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985) (guaranteeing procedural protections to
public employees with a property interest in continued
employment under state law); Rivera-Ruiz v. Gonzalez-Rivera,
983 F.2d 332, 334 (1st Cir. 1993) (noting that, under Puerto
Rico law, the existence of a property right in continued
public sector employment is dependent on the legality of
plaintiffs' appointments under Puerto Rico's civil service
laws). That Due Process claim is not dependent on the merits
of plaintiffs' First Amendment claims; the inquiries are
-21-
21
distinct.8 See Nieves-Villanueva v. Soto-Rivera, No. 96-
1285, slip op. at 16 (1st Cir. 1997).
The judgment of the district court is vacated, and
the case is remanded for further proceedings consistent with
this opinion.
8. We take the case as we find it -- with defendants not
articulating a defense based on the Elrod-Branti exception --
and so we also do not delve into a question, not briefed by
any of the parties, as to whether the Due Process analysis is
altered in any way if defendants may validly cause a
reclassification of a position from a civil service position
to one in which political affiliation is a legitimate
requirement, and how, under the laws of Puerto Rico, an
agency may accomplish this.
-22-
22