Duriex-Gauthier v. Lopez-Nieves

United States Court of Appeals
For the First Circuit
____________________

No. 01-1746

PETER DURIEX-GAUTHIER,

Plaintiff, Appellee,

v.

CARLOS LOPEZ-NIEVES,

Defendant, Appellant,

JANE DOE,
AND THE CONJUGAL PARTNERSHIP CONSTITUTED BY LOPEZ-NIEVES AND DOE,

Defendants.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

____________________

Before

Boudin, Chief Judge,
Kravitch*, Senior Circuit Judge,
and Lynch, Circuit Judge.

____________________

Jorge Martínez Luciano with whom Johanna Emmanuelli Huertas and
Law Offices of Pedro Ortiz Alvarez, PSC were on brief for appellant.
Ivan Diaz Lopez for appellee.

*Of the Eleventh Circuit, sitting by designation.
 ____________________

December 10, 2001
____________________
LYNCH, Circuit Judge. Peter Duriex-Gauthier held the

position of Personnel and General Services Officer in the

Ombudsman’s Office of Puerto Rico from December 1991 to August

31, 1998. Following the termination of his employment, he sued

Carlos Lopez-Nieves, the newly appointed Director of the

Ombudsman’s Office, in Lopez-Nieves’s personal and official

capacities. Duriex-Gauthier made two claims. First, he argued

that his firing was in violation of his First Amendment rights

in that Lopez-Nieves, a member of the New Progressive Party

(NPP), terminated his employment because Duriex-Gauthier was a

Popular Democratic Party (PDP) member and that his position was

not a position for which political affiliation was an

appropriate consideration. Rutan v. Republican Party, 497 U.S.

62, 71 (1990); Branti v. Finkel, 445 U.S. 507 (1980). Second,

he says that he was in a tenured position under Puerto Rico law

and his firing violated his procedural due process rights.

Duriex-Gauthier sought damages and reinstatement.

The defendant moved for summary judgment on the

question of qualified immunity as to both claims. The district

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court denied the motion on all grounds. Duriex-Gauthier v.

Lopez-Nieves, 135 F. Supp. 2d 311 (D.P.R. 2001). Defendant

appeals.1 We have jurisdiction over an appeal from a denial of

summary judgment on the grounds of qualified immunity where the

denial turns on an issue of law. Behrens v. Pelletier, 516 U.S.

299, 306 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

Our jurisdiction over the issue of the defendants' qualified

immunity from monetary damages is not contested.

I.

The Ombudsman’s Office was created by statute, as an

adjunct to the Legislature of Puerto Rico. Ombudsman Act, 1977

P.R. Laws 134 (codified as amended at 2 P.R. Laws Ann. §§ 701-

726 (1994)). Thus, unlike most political termination claims,

the executive branch is not at issue here. The Ombudsman is

appointed for a fixed six-year term of office, 2 P.R. Laws Ann.

§ 704, and so is outside the four-year electoral cycle. He is

appointed by the Governor, with the advice and consent of the

1 Defendant denies the discharge was politically motivated.
This disputed fact is immaterial to whether plaintiff’s position was a
position for which political affiliation is appropriate or to whether
the defendant could have reasonably believed it was so. Defendant also
moved for summary judgment on the merits; we have no appellate
jurisdiction over that aspect of the denial of the motion except to the
extent that the issues are implicated in the immunity issue.

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Puerto Rico legislature, and is statutorily limited to no more

than two terms of office. Id.

The duties of the Ombudsman’s Office are to investigate

the administrative acts of the agencies and conduct

investigations of citizens' claims. 2 P.R. Laws Ann. § 710.

The Ombudsman is authorized to adopt and promulgate the

necessary rules and regulations to carry out the duties of his

Office and to establish regulations for the filing and handling

of complaints, procedures for investigations, the manner of

informing his findings, and the personnel administration of his

office. Id. § 708. After completing an investigation, the

Ombudsman may recommend a remedy, including, for example, that

an administrative act should be altered or set aside, that the

law or regulations on which the administrative act is based

should be modified, or that the agency should perform another

action. 2 P.R. Laws Ann. § 717.

Puerto Rico does have a civil service system, called

the Puerto Rico Service Personnel Act, 3 P.R. Laws Ann. §§ 1301-

1421 (1994). The Personnel Act, however, does not apply to the

Legislative Branch, id. § 1338(a), and so does not apply to the

Ombudsman’s Office. The original 1977 Ombudsman Act stated that

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all employees in the Office were to be considered as "trust"

employees, as used in the Personnel Act, which in turn specifies

that such employees are subject to free removal. 1977 P.R. Laws

134, art. 7; 3 P.R. Laws Ann. § 1350. The Ombudsman Act also

authorizes the Ombudsman to adopt regulations to administer the

personnel of that Office. 2 P.R. Laws Ann. § 703.

The pertinent regulation here is Regulation No. 86-3.

That Regulation contains two seemingly inconsistent sections.

Section V, entitled “Office Composition,” states that the Office

is excluded from the Personnel Act and that "all the employees

of the Ombudsman’s Office are of free selection and removal."

The defendant relies heavily on this section.

However, in Section XVIII of the Regulation, entitled

“Retention in Service," subsection A, entitled "Employment

Security," states that "[t]he employees of the Office of the

Ombudsman will have tenure in their positions, if they satisfy

the criteria of productivity, efficiency, order and discipline

that should prevail in the public service. Plaintiff relies

heavily on this section.

Section VI, entitled "Recruitment, Selection and

Removal of Employees," is also pertinent, as it appears to carve

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out an exception to Section XVIII's tenure provision for

employees designated as "trust" employees. Section VI provides:

1. In the case of employees of trust and confidence
whose duties have to do with the formulation of public
policy and those who offer personal service directly
to the Ombudsman, the provisions of this Regulation
will not be mandatory in reference to the recruitment,
selection and removal.

. . . .

3. The trust and confidence employees, whether it be
that they participate in the formulation of public
policy or provide personal or direct services to the
Ombudsman, will be of free removal.

A 1987 amendment to the Ombudsman Act eliminated the

Act's statement that all employees would be in the trust

service, clarified that employees were excluded from the

Personnel Act, and provided that the Ombudsman’s Personnel

Regulation shall apply to employees of the Office. 2 P.R. Laws

Ann.§ 707. The Ombudsman's Personnel Regulations cited above

remained unchanged.2 Duriex-Gauthier says this was a scrivner’s

2 However, on September 22, 1987, the then-Ombudsman, Mr. R.
Adolfo de Castro, issued an Administrative Order to amend Section 5 of
Regulation 86-3. This Administrative Order named four job
classifications, comprising six positions, that would be regarded as
“officers of strict confidence to the Ombudsman”: one deputy ombudsman,
two executive secretaries, one special aide and two drivers.
Plaintiff’s job was not included. Defendant points out that these six
positions were ones of strict confidence, which does not mean that
plaintiff’s position was not also one of confidence.

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error, that the regulation stating that the Ombudsman's

employees are of free selection and removal should have been

eliminated when the statute was amended. Nonetheless, the

regulation remains.

Duriex-Gauthier was hired in the Office starting in

1986, when it was then under the Directorship of a PDP member,

and was promoted to various positions until he became head of

Personnel and General Services in 1991. The forms filed with

the Central Office of Personnel Administration, a different

agency, describe him as a trust and confidence employee. His

various employment contracts stated that each of his positions

was a “trust” position.3 This is a term of art in the government

of Puerto Rico, defined within the civil service law as "those

who intervene or collaborate substantially in the formulation of

the public policy, who advise directly or render direct services

to the head of the agency." 3 P.R. Laws Ann. § 1350 (1994).

The original statute creating the Ombudsman's Office referenced

this definition, and Section VI of the Ombudsman's Regulations,

3 This is translated from the Spanish term "confianza," which
is alternately translated as "trust," "confidence," or "trust and
confidence" in the record here and in our past cases. We will use the
translations provided to us, and the reader should be aware that,
although the terminology may vary, the substance remains the same.

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quoted above, mirrors the Personnel Act definition as well,

suggesting that this term was meant to have the same meaning

within the Ombudsman's Office.

Carlos Lopez-Nieves, a NPP member, was appointed

Ombudsman on July 21, 1998. In August 27, 1998, Lopez-Nieves

sent a termination letter to Duriex-Gauthier which did not state

any grounds for his termination, but said his position was one

of trust. Duriex-Gauthier contests whether his position was one

of trust, arguing that the Regulations cited above gave him

tenure in his position, thereby changing his position from one

of trust into one of right. He further argues that his actual

duties lacked the hallmarks of such a position, namely,

substantial involvement in policymaking and direct advising or

services to the agency head.

As to the debate over whether Duriex-Gauthier's

position was one of trust, this court has previously indicated

that designating a position as one of "trust" indicates that it

is considered a policymaking position under Puerto Rican law,

which is not dispositive of the federal question under Rutan,

497 U.S. 62, and Branti, 445 U.S. 507, but is entitled to some

deference by this court. Roldan-Plumey v. Cerezo-Suarez, 115

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F.3d 58, 64-65 (1st Cir. 1997); Ortiz-Pinero v. Rivera-Arroyo,

84 F.3d 7, 16 (1st Cir. 1996). We have consistently held that

the job description is the best, and sometimes dispositive,

source for determining the inherent functions of the position.

Roldan-Plumey, 115 F.3d at 62.4

During plaintiff’s employment as Personnel Officer, the

job description for the position provided:

Duties of Position:
This is a technical and administrative job of great
complexity and responsibility in the field of
personnel administration comprising the performance of
a series of tasks with a large variety. The employee
would receive general and specific instructions on the
work to be performed. The employee shall work with
great technical independence responding directly to
the Deputy Ombudsman of the office as to the
conformity of its job with the rules set forth.

Shall perform the following duties:

Shall be responsible for the planning and supervision
of all the personnel activities including the
classification and compensation aspects of the
positions, training, transactions, leaves, payrolls,
personnel relations and similar aspects in the
personnel administration field.

4 We have also looked to information such as the size of the
agency and where the position is in the management structure. See
Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1997).
Unfortunately, defendants have not provided any such information in the
record.

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 Shall interpret and apply the laws and regulations
governing personnel administration.

Shall analyze the problems of organization and
procedures.

Shall plan, assign and organize the work of the
personnel unit.

Shall act as the liaison officer between the Office
and COPA [the Central Office for the Administration of
Personnel].

Shall perform other jobs similar to this.

"[D]uties prevail over titles; everything depends on

circumstances." Flynn v. City of Boston, 140 F.3d 42, 44 (1st

Cir. 1997). We turn to the summary judgment issues.

II.

A. Qualified Immunity on First Amendment Claim

The general test for qualified immunity is often stated

as a two-part test. First, was the constitutional right in

question clearly established at the time? Anderson v.

Creighton, 483 U.S. 635, 638 (1987). Second, would a

reasonable, similarly situated individual understand that the

challenged conduct violated that established right? Swain v.

Spinney, 117 F.3d 1, 9 (1st Cir. 1997). Whether a right is

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clearly established is an issue of law for the court. Elder v.

Holloway, 510 U.S. 510, 516 (1994).

The test for qualified immunity in cases involving

political firing claims is well established. "[T]o decide the

'qualified immunity' issue, we need only determine whether the

plaintiff[’s] position[] 'potentially' concerned matters of

partisan political interest and involved a 'modicum' of policy-

making responsibility, access to confidential information, or

official communication." Zayas-Rodriguez v. Hernandez, 830 F.2d

1, 2 (1st Cir. 1987); see also Juarbe-Angueira v. Arias, 831

F.2d 11, 14 (1st Cir. 1987); Mendez-Palou v. Rohena-Betancourt,

813 F.2d 1255, 1259 (1st Cir. 1987).

The Supreme Court has, however, noted the importance

of providing certainty as to what are the clearly established

rules of primary conduct for government officials. County of

Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998). Rulings on

qualified immunity grounds avoid reaching the issue of whether

there is a violation at all. For these reasons, the Court has

expressed that “the better approach to resolving cases in which

the defense of qualified immunity is raised is to determine

first whether the plaintiff has alleged a deprivation of a

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constitutional right at all.” Id. See Siegert v. Gilley, 500

U.S. 226, 232 (1991). Because we consider this an issue

concerning the primary conduct of government officials, we turn

to it.

1. Merits of First Amendment Claim

There is no issue about the general existence of the

First Amendment right at issue here; this case turns rather on

whether the right extends to persons in this position. This

circuit has established a two-part test to determine whether

“the hiring authority” can demonstrate that party affiliation is

an appropriate requirement for the effective performance of the

public office involved. Jimenez Fuentes v. Torres Gaztambide,

807 F.2d 236 (1st Cir. 1986) (en banc). In Jimenez Fuentes, this

court described the two prongs. Id. at 241-42. First, we

determine whether "the position involve[s] government

decisionmaking on issues where there is room for political

disagreement on goals or their implementation." Id. Second, we

"examine the particular responsibilities of the position to

determine whether it resembles a policymaker, [one] privy to

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confidential information, a communicator, or some other office

holder whose function is such that party affiliation is an

equally appropriate requirement." Id. at 242; see also Roldan-

Plumey, 115 F.3d at 62; Ortiz-Pinero, 84 F.3d at 12; O’Connor v.

Steeves, 994 F.2d 905, 910 (1st Cir. 1993).

The district court found that plaintiff had waived any

issue on the first prong by failing to respond to the

defendant's contention that the duties of the Office of the

Ombudsman involve decionmaking where there is room for political

disagreement. Duriex-Gauthier, 135 F. Supp. 2d at 315. As to

the second prong, the district court found in plaintiff’s favor

that "the duties of [plaintiff’s position] are those of a

typical technocrat." Id. at 316. The court discounted as

factually inapposite numerous decisions of this court finding

personnel directors' positions to be ones in which party

affiliation was, in the requisite sense, an appropriate job

requirement. Id. (citing Cordero v. De Jesus-Mendez, 867 F.2d

1, 11-12 (1st Cir. 1989) (personnel director of municipality)

and Zayas-Rodriguez, 830 F.2d at 3 (director of personnel of

Puerto Rico Highway Authority)). The court ultimately denied

summary judgment on the ground that "plaintiff’s position was

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that of a technocrat devoid of even a modicum of policymaking or

confidential responsibilities." Id. at 317.

Duriex-Gauthier's job description describes a Personnel

Director "with great technical independence" who reported

directly to the number two person in the agency. He was not

limited to merely making recommendations on personnel matters,

but rather was also "responsible for the planning and

supervision of all the personnel activities." His duties

included analyzing the problems of organization and procedures

and interpreting and applying the personnel laws. Further, the

duties explicitly included a liaison role with the Central

Office for the Administration of Personnel. These duties appear

to fit comfortably within the second prong of the Jimenez

Fuentes test, and are strikingly similar to the duties of the

personnel director in the Cordero case. 867 F.2d at 11-12. In

this circuit we

have regularly upheld against First Amendment
challenge the dismissal on political grounds of mid-
or upper-level officials or employees who are
significantly connected to policy-making. This result
has followed where the plaintiff merely represented
the agency’s policy positions to other entities or to
the public or where important personnel functions were
part of the portfolio.

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Flynn, 140 F.3d at 45.

This conclusion is reinforced by the description of the

position in each of plaintiff’s employment contracts as a trust

position, and by Section VI of Regulation 86, which states that

trust employees of the Ombudsman's Office are subject to free

removal. We also note that under Puerto Rican law, personnel

directors are often considered to be trust employees. Franco v.

Municipio de Cidra, 113 P.R. Dec. 260, 263 (1982) (noting that

because mayor had delegated his statutory authority to name

employees to the personnel director, who had primary authority

for advising mayor on personnel matters, position was "ipso

jure" one of trust). While the labels do not determine the

outcome, Ortiz-Pinero, 84 F.3d at 12, the labels here coincide

with an objectively reasonable conclusion that the duties are

those of a position exempt from the Branti/Rutan rule.

Duriex-Gauthier attempts to avoid this conclusion with

an argument that the very nature of the Ombudsman’s Office is

non-political and so plaintiff must be protected by the First

Amendment. Plaintiff stresses that the Ombudsman is not part of

the executive branch but of the legislative branch, and that the

Ombudsman is appointed for a six-year term deliberately to

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remove him from the four-year electoral cycle.5 Our precedent

has not been restricted to the executive branch. This court has

routinely applied Branti to public agencies, such as the Puerto

Rico Highway Authority, and has found certain top level jobs to

be excluded. Zayas-Rodriguez, 830 F.2d at 304. The ultimate

question is whether the position is one in which political

affiliation is a reasonably necessary requirement; if so the

position is an exception to the Branti/Rutan standard. That

question rarely permits a categorical answer and nothing in the

Supreme Court caselaw limits the positions for which political

affiliation is appropriate to the executive branch. Moreover,

the Ombudsman is attached by law to the legislative branch, the

branch in which partisan political concerns are at their

strongest. The Ombudsman is appointed by the governor and must

be approved by a majority of all members of the legislative

branch. 2 P.R. Laws Ann. § 704. Although the Ombudsman's

appointment may reflect a compromise between political parties,

at least in instances where opposing parties control the

5 Plaintiff stated in his brief that the Ombudsman is appointed
to a ten-year term. However, the Ombudsman, according to the statute,
is appointed to a six-year term. 2 P.R. Laws Ann. § 704. The mistake
is irrelevant to our analysis.

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executive and the legislature, we think it clear that the

overall functions of the Ombudsman “involve government

decisionmaking on issues where there is room for political

disagreement on goals or their implementation,” Jimenez

Fuentes, 807 F.2d at 241-42, such as decisions about which

investigations to undertake and on which issues to focus.

Plaintiff was hired by a PDP Director and fired by a NPP

Director, each of whom may have taken different approaches to

the Ombudsman's duties based on party affiliation.

2. Application of Qualified Immunity Standard

Even had we not addressed whether plaintiff's position

was a protected position, immunity should have been granted.

While the district court could have granted immunity on the

basis that it was clear that the position was one for which

party affiliation was appropriate, it could not deny immunity on

the basis that in its view the position was not. That ruling

does not dispose of immunity but simply brings the court to the

dispositive question: whether an objectively reasonable person

in Lopez-Nieves's position could conclude that Duriex-Gauthier's

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position "'potentially' concerned matters of partisan political

interest and involved a 'modicum' of policy-making

responsibility, access to confidential information, or official

communication." Zayas-Rodriguez, 830 F.2d at 2. The answer to

the appropriate question leads to the conclusion that Lopez-

Nieves was entitled to immunity.

In previous cases, we have granted immunity partially

because a defendant might reasonably rely, even if mistakenly

so, on the position’s status as “confidential or trust” under

the Puerto Rico Public Service Act. See Roldan-Plumey, 115 F.3d

at 65. Here, we think an objectively reasonable person in

defendant’s position could conclude both that Duriex-Gauthier’s

position as Personnel Director was not a protected position,

particularly in light of our previous decisions holding that

personnel directors were not protected, of Duriex-Gauthier's

contract and job description, and of Regulation 86, which

indicated that his position was one of free removal.

B. Qualified Immunity on Due Process Claim

On the due process claim, the only issue before us is

whether defendant is entitled to qualified immunity, and

therefore the only question we need answer is whether a

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reasonable person in Lopez-Nieves's position would have thought

that firing Duriex-Gauthier violated his due process rights.

The due process claim turns on whether Duriex-Gauthier had a

property interest in his job, which is a question of Puerto

Rican law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 538 (1985). There is no strong federal concern to provide

guidance as to the primary conduct of Puerto Rican government

officials here. Plaintiff’s theory is that he was neither a

confidence nor a trust employee under state law, but was an

employee entitled to “tenure” under Section VXIII of Regulation

86 and so had a property interest in his job. If he did have

such an interest, he could not be deprived of it without due

process of law.

It is unclear to us whether the process he claims is

due is that set forth in Regulation 86 or in the Personnel Law.6

The tensions between Sections XVIII and Section V of Regulation

86 may create some ambiguity as to whether Ombudsman's Office

6 The existence of these processes raises a question of the
nature of plaintiff’s due process claim, if any, and the nature of any
relief available in light of the Parratt-Hudson doctrine. See O’Neill
v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) (citing Parratt v. Taylor,
451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984)). But
see Zinerman v. Burch, 494 U.S. 113, 133-37 (1990) (discussing the
limits of Parrat-Hudson doctrine).

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employees are generally subject to free removal or have tenure.

However, Duriex-Gauthier's position does not seem to fall within

that ambiguity; Section VI appears to create an exception to

Section XVIII for employees who occupy trust positions, which

Duriex-Gauthier's contract says he did. It suffices to say that

Lopez-Nieves could reasonably have concluded that Duriex-

Gauthier did not have a property interest in his job under

Regulation 86. As to the Personnel Act, there is law to the

effect that one not recruited according to the merit principle

embodied in that Act, 2 P.R. Laws Ann. § 1333, has no right to

the processes provided by the Act. Colon Perez v. Alcalde del

Municipio de Ceiba, 112 P.R. Dec. 740, 747 (1982). Lopez-Nieves

has produced an unrebutted affidavit to the effect that Duriex-

Gauthier was not so recruited and therefore it appears that the

plaintiff has no property right under the Personnel Act. Thus,

we cannot say a reasonable director could not objectively

conclude there was no property interest involved.

III.

Accordingly, we reverse the district court, and remand

with directions that defendant be granted qualified immunity as

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to all claims, that the First Amendment claim be dismissed, and

for further proceedings consistent with this opinion on the

plaintiff's claim for injunctive relief on the alleged due

process violation.

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