Galloza-Gonzalez v. Foy

United States Court of Appeals
For the First Circuit

No. 03-2658

BENITO GALLOZA, A/K/A BENITO GALLOZA GONZALEZ, ET AL.,

Plaintiffs, Appellants,

v.

NORMAN E. FOY ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya, Lipez and Howard,

Circuit Judges.

Nydia Gonzalez Ortiz, with whom Santiago & Gonzalez was on
brief for appellants.
Teresa M. Seda Ramos, with whom Sánchez Betances & Sifre,
P.S.C. was on brief, for appellees.

November 10, 2004
 SELYA, Circuit Judge. In this action, the plaintiffs,

who once held identical appointed offices in the same government

agency, claim that their ousters were rooted in politics and, thus,

violated their rights under the First Amendment to the United

States Constitution. As a fallback, they also claim that the

adverse personnel actions infringed property rights secured to them

by the Due Process Clause of the Fifth and Fourteenth Amendments.

The district court brushed these claims aside and granted summary

judgment in favor of the defendants. The plaintiffs now appeal.

After careful perscrutation of the briefs and the record, we

conclude that political affiliation is a permissible criterion for

holding the positions at issue and that the plaintiffs lacked any

constitutionally protected property interest in those positions.

Consequently, we affirm the judgment below.

The essential facts are uncontroversial. In 1991, the

Puerto Rico legislature established the Municipal Revenues

Collection Center (familiarly known by its Spanish acronym, CRIM)

to "collect, receive and allocate . . . public funds" generated

primarily through municipal property taxes. P.R. Laws Ann. tit.

21, § 5802. Organizationally, CRIM maintains nine regional

offices, each of which operates under the aegis of a regional

administrator. From 1993 through 2000, the New Progressive Party

(NPP) controlled the central government of Puerto Rico. At various

times during the NPP's reign, CRIM's executive director appointed

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plaintiffs-appellants Benito Galloza Gonzalez, Orlando Mas-Muñiz,

and Luis Antonio Galarza-Pérez, each of whom had enjoyed a long and

successful career as a bureaucrat, to serve as regional

administrators.

The Popular Democratic Party (PDP) swept to victory in

the November 2000 general elections. Subsequent thereto, CRIM's

reconstituted board of directors named defendant-appellee Norman E.

Foy as CRIM's executive director and defendant-appellee Euclides

Martinez as deputy executive director. The new hierarchs requested

the plaintiffs' resignations. When the plaintiffs balked, Foy

discharged them from their regional administrator positions

(although he reinstated them to the career positions that they

previously had occupied). Foy then appointed others of his

choosing to the newly vacated regional administrator positions.

For purposes of this opinion, we assume that politics played a

decisive role in these personnel moves (Foy and Martinez are

members of the PDP, whereas the plaintiffs are members of the NPP).

The plaintiffs brought suit under 42 U.S.C. § 1983,

arguing that (i) political affiliation is an inappropriate

criterion for employment as a regional administrator of CRIM (and,

thus, the defendants' actions in reliance on it constituted

political discrimination), and (ii) each of them had acquired a

property interest in the regional administrator's position (and,

thus, the defendants' abrupt dismissals of them for partisan

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political reasons abridged due process). The defendants' riposte

was that (i) political affiliation is an appropriate criterion for

the effective performance of a regional administrator's duties, and

(ii) the position is one of "trust," statutorily committed to free

selection and removal (and, thus, not one in which a job-holder can

acquire a constitutionally protected property interest). In a

thoughtful rescript, the district court accepted the defendants'

arguments and granted summary judgment accordingly. Gonzalez v.

Foy, 286 F. Supp. 2d 223 (D.P.R. 2003). This appeal followed.

We review the entry of summary judgment de novo, taking

all disputed facts in the light most hospitable to the nonmovants

(here, the plaintiffs) and drawing all reasonable inferences

therefrom in favor of the nonmovants. Houlton Citizens' Coalition

v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999); Garside v.

Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). In conducting

this tamisage, we do not consider "conclusory allegations,

improbable inferences, and unsupported speculation." Medina-Munoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

Summary judgment is proper only if the record, read in this manner,

reflects that no genuine issue of material fact exists and that the

moving party or parties are entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c).

Having erected the summary judgment framework, we move to

the plaintiffs' political discrimination claims. The First

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Amendment protects associational rights. Incorporated within this

prophylaxis is the right to be free from discrimination on account

of one's political opinions or beliefs. LaRou v. Ridlon, 98 F.3d

659, 661 (1st Cir. 1996). This protection extends to matters of

public employment: as a general rule, a government employer cannot

discharge public employees merely because they are not sponsored by

or affiliated with a particular political party. Elrod v. Burns,

427 U.S. 347, 350 (1976).

Like most general rules, this rule admits of certain

well-defined exceptions. One such exception is reserved for

instances in which political affiliation is an "appropriate

requirement for the effective performance of the public office

involved." Branti v. Finkel, 445 U.S. 507, 518 (1980). This

exception helps to ensure that elected representatives will not be

hamstrung in endeavoring to carry out the voters' mandate. See

Elrod, 427 U.S. at 367. Policies espoused by a new administration,

presumably desired by the citizens whose votes elected that

administration, must be given a fair opportunity to flourish.

In an effort to hold the balance steady and true between

an individual employee's legitimate First Amendment right to

freedom of association and a new administration's legitimate

interest in implementing its civic policies, the Supreme Court has

decreed that a public employer, as a prerequisite for discharging

an employee for political reasons, must demonstrate that political

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affiliation is an appropriate requirement for the position in

question. Elrod, 427 U.S. at 362-63. This means, in effect, that

the employer must show that the position is confidential or

policymaking in nature. Id. at 367.

That may be more easily said than done; determining

whether a position is "confidential" or "policymaking" is not a

matter of inserting variables into a known equation and crunching

the numbers. See, e.g., id. at 367 (acknowledging that "[n]o clear

line can be drawn between policymaking and nonpolicymaking

positions"); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324

(1st Cir. 1987) (noting that "[c]onfidentiality has many facets" in

this context). Nor can the question be resolved by the simple

expedient of examining the government's classification of a

particular position (although that taxonomy may be entitled to some

weight). See Branti, 445 U.S. at 518; Jimenez-Fuentes v. Torres

Gaztambide, 807 F.2d 236, 246 (1st Cir. 1986) (en banc); see also

Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir.

1987) (warning that this court, in determining whether political

affiliation is an appropriate job requirement, has "resisted rigid

use of labels"). When all is said and done, the determination as

to whether a particular office is policymaking or confidential in

nature, so as to make political affiliation an appropriate

requirement for holding it, is fact-specific.

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 This case involves positions that, according to the

defendants, have sufficient policymaking implications to avoid the

constitutional proscription against politically motivated

discharges. To test that representation, we employ a two-pronged

analysis. The first prong, derived directly from Branti, 445 U.S.

at 519, necessitates a high-level glimpse of the purpose of the

employing agency and the role that the particular position occupies

within it. Although conducted from the juridical equivalent of

50,000 feet, this reconnaissance should determine "whether the

agency employing the plaintiff handle[s] matters potentially

subject to partisan political differences," and should permit a

tentative conclusion about the extent to which the particular

position has the capacity to "influence the resolution of such

matters." Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258

(1st Cir. 1987). This first prong is satisfied (that is, a

position may be regarded, at least provisionally, as a policymaking

position) as long as the position potentially "involve[s]

government decisionmaking on issues where there is room for

political disagreement on goals or their implementation." Jimenez-

Fuentes, 807 F.2d at 241-42.

As applied to putative policymakers, the second analytic

prong aspires to actualize the potential of the particular

position. This task necessitates a detailed examination into

whether the specific responsibilities of the position sufficiently

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resemble those of a policymaker or office-holder whose functions

are such that party affiliation is an appropriate criterion for

tenure. Id. "The nature of the responsibilities is critical."

Elrod, 427 U.S. at 367.

To differentiate between policymakers and non-

policymakers, we assay a wide array of factors, including the

relative compensation level for the position, the technical

expertise (if any) required to do the job, the extent to which the

position involves supervision and control over others, the degree

to which the position confers authority to speak in the name of

higher-ups who themselves are policymakers, the influence of the

position over programs and policy initiatives, and the public

perception of what the position entails. See Jimenez-Fuentes, 807

F.2d at 242. We also factor into the mix the relationship of the

position to elected officials, party leaders, and partisan

politics. Id. Finally, "consideration should . . . be given to

whether the employee acts as an adviser or formulates plans for the

implementation of broad goals." Elrod, 427 U.S. at 368.

This inquiry focuses not on what functions a particular

occupant of the position may in fact carry out from time to time,

but, rather, on the essential attributes of the position itself.

See O'Conner v. Steeves, 994 F.2d 905, 911 (1st Cir. 1993);

Jimenez-Fuentes, 807 F.2d at 242. Thus, if a formal job

description exists, it is important for an inquiring court to look

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to the specifics of that document. See Jimenez-Fuentes, 807 F.2d

at 242. "An employee with responsibilities that are not well

defined or are of broad scope more likely functions in a

policymaking position." Elrod, 427 U.S. at 368.

We emphasize that the goal of this two-pronged analysis

is not to shackle a new administration in the legitimate pursuit of

the policies that led to its electoral success. In Flynn v. City

of Boston, 140 F.3d 42 (1st Cir. 1998), we explained that "an

employee is not immune from political firing merely because the

employee stands apart from 'partisan' politics, or is not the

ultimate decisionmaker in the agency, or is guided in some of his

or her functions by professional or technical standards. Rather,

it is enough that the official be involved in policy, even if only

as an adviser, implementer, or spokesperson." Id. at 46 (citations

and internal quotation marks omitted). Those words color our

examination of the present plaintiffs' political discrimination

claims.

We turn now from the general to the specific. Our task

is to determine whether the regional administrator position within

CRIM sufficiently relates to partisan political interests or

concerns to warrant application of the policymaker exception. We

conclude that it does.

It is difficult to imagine a more politically sensitive

issue than the collection and apportionment of taxes. Taxation is

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considered an inevitable concomitant of American life. Cf. Letter

from Benjamin Franklin to Jean-Baptiste Le Roy (Nov. 13, 1789) in

10 The Works of Benjamin Franklin 409, 410 (Boston, Hilliard, Gray

& Co. 1840) (positing that in the newly formed republic, "nothing

can be said to be certain, except death and taxes"). The tax rate,

the assiduousness of the collection process, and the distribution

of the revenues generated will significantly impact the domestic

agenda of virtually every municipal, county, and state government

in the United States (not to mention the federal sovereign).

Governments at every level rely upon tax revenues to fund programs

and functions that serve constituent needs. Roads could not be

maintained, drinking water made potable, or social services

administered without a tax-driven revenue stream. In the idiom of

the First Amendment case law, then, taxation is a "vital political

issue," Jimenez-Fuentes, 807 F.2d at 243 — and one that is of

special importance to those who harbor partisan political

ambitions.

The agency, too, is politically sensitive. CRIM's

responsibilities extend beyond collection and enforcement

activities. For example, it is tasked with setting tax rates and

allocating collected revenues to the various municipalities it

serves. See P.R. Laws Ann. tit. 21, § 5802. While the mechanical

process of collecting taxes, by itself, may not be subject to much

political disagreement, the potential for partisan divergence

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increases exponentially when an agency has the discretion to affect

the assessment of taxes and the distribution of the amounts that

are collected.

The role of the regional administrator is not

inconsequential in this process. CRIM's regional offices are

entrusted, inter alia, with the responsibility for implementing the

policies set by CRIM's board of directors and executive director.

The regional administrator is the head of each regional office. He

or she speaks for the agency in that region and superintends its

activities there. Given the political sensitivity of taxation and

the role and status of the agency and its regional administrators,

we conclude that the position is one that satisfies the first facet

of the policymaker analysis.

We thus reach the second prong of the inquiry. At that

stage, the issue to be resolved is whether the position resembles

that of a policymaker, whose functions are such that party

affiliation is a concinnous criterion for selection and/or

retention. Jimenez-Fuentes, 807 F.2d at 242. In making this

determination, what counts are the attributes inherent in the

position — its duties and powers — as opposed to the work actually

performed by a quondam holder of that position. See id.

As indicated above, a perusal of the job description for

the position is the most useful starting point for determining the

position's inherent attributes. See Roland-Plumey v. Cerezo-

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Suarez, 115 F.3d 58, 62 (1st Cir. 1997); Ortiz-Pinero v. Rivera-

Arroyo, 84 F.3d 7, 13 (1st Cir. 1996); see also Mendez-Palou, 813

F.2d at 1260 ("Whenever possible, we will rely upon [the written

job description] because it contains precisely the information we

need concerning the position's inherent powers."). Job

descriptions with duties that are broad or open-ended generally

allow for the latitude to exercise discretionary judgment (and,

thus, tend to indicate that a position is policymaking in nature).

Roland-Plumey, 115 F.3d at 62. Conversely, job descriptions with

duties that are narrowly circumscribed or rigidly delimited

generally inhibit freedom of action (and, thus, tend to indicate

that a position is not policymaking in nature). Id.

The official job description for the regional

administrator position lists twelve main areas of responsibility.1

Taken in the ensemble, this compendium strongly suggests that the

position is one in which political affiliation is an appropriate

criterion for employment. A regional administrator's duties

involve, among other things, the planning and supervision of all

administrative activities of the regional center; the oversight of

personnel; the establishment of work methods to implement CRIM's

objectives; the giving of advice to mid-level supervisory personnel

in matters such as drawing up work plans; the channeling of complex

1
For ease in reference, we attach the official job description
as an appendix to this opinion.

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cases; and representation of the agency at various types of local

assemblies, meetings, and conferences. In addition, the position

vests the holder with the authority to determine what appraisals

shall be made within the region, the power to resolve taxpayer

problems (including the right to override preliminary

determinations of the field staff or mid-level supervisors), the

responsibility of maintaining relationships with the mayors of the

affected municipalities in order to facilitate the performance of

CRIM's work, and the duty of integrating CRIM's policies with the

contribution needs and priorities of each municipality.

These are not purely mechanical or ministerial functions.

They illustrate the wide sweep of discretionary powers inherent in

the position of regional administrator. The responsibilities of a

regional administrator, in CRIM's organizational structure, are not

narrowly circumscribed, but, rather, are open-ended; they afford

the position's occupant considerable leeway for discretionary

policymaking and policy implementation.2 As the district court

perspicuously noted, the performance of a regional administrator

can affect the financial well-being of the communities within the

2
If more were needed — and we doubt that it is — we find it
compelling that the regional administrators are in the upper
echelon of CRIM's employees in terms of compensation; indeed, the
plaintiffs' pay increased anywhere from 150% to 200% after being
elevated from their career positions to the regional administrator
positions.

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region and can enhance or diminish CRIM's public image. See

Gonzalez, 286 F. Supp. 2d at 228-29.

The case law erases any lingering doubt. Although CRIM's

regional administrator positions have not previously been the

subject of reported First Amendment litigation, this court "ha[s]

regularly upheld against First Amendment challenge the dismissal on

political grounds of mid- to upper-level officials or employees who

are significantly connected to policy-making." Flynn, 140 F.3d at

45. On this basis, we uniformly have classified analogous

positions as involving policymaking. See, e.g., Duriex-Gauthier v.

Lopez-Nieves, 274 F.3d 4, 10 (1st Cir. 2001) (holding that the

personnel officer in Puerto Rico's Ombudsman's Office was a

policymaking position, notwithstanding a number of "technical and

administrative" duties, because its occupant was "responsible for

the planning and supervising of . . . personnel activities" and the

like); Ortiz-Pinero, 84 F.3d at 11 (concluding that the office of

director of federal programs in an agency that obtained and

administered federal funding for public works projects was a

policymaking position); Ortiz Lebron v. Santiago Nieves, 813 F.2d

22, 26 (1st Cir. 1987) (holding that the position of regional

director of the Puerto Rico Department of Natural Resources was

policymaking in nature); Jimenez-Fuentes, 807 F.2d at 244 (holding

to like effect anent a regional director of Puerto Rico's Urban

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Development and Housing Corporation). This case is cut from the

same cloth.

Where, as here, the holder of a position is deeply

involved in policy, even if only as an implementer or agency

representative, no more is exigible to satisfy the Elrod-Branti

analysis. Taking into account the position's "relative pay, power

to control others, authority to speak in the name of policymakers,

public perception, influence on programs, contact with elected

officials and responsiveness to partisan politics and political

leaders," Jimenez-Fuentes, 807 F.2d at 242 (citation and internal

quotation marks omitted), we conclude that, for First Amendment

purposes, a regional administrator in the CRIM hierarchy is a

policymaker.

In an effort to blunt the force of this reasoning, the

plaintiffs contend that CRIM's independence from the central

government and the bipartisan makeup of its board of directors

necessitate a finding that political affiliation is not an

appropriate criterion for appointment as a regional administrator.

We do not agree.

The legislature created CRIM on the understanding that

the agency would be "independent and separate from any other agency

or instrumentality of the Government of the Commonwealth of Puerto

Rico." P.R. Laws Ann. tit. 21, § 5802. Although this language

establishes CRIM as a separate and independent agency, nothing in

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the statute declares that the agency is to be a political eunuch.

In fact, the statute specifies that CRIM's board of directors shall

consist of nine members, seven of whom are to be sitting mayors and

two of whom are to be officials of the central government.3 P.R.

Laws Ann. tit. 21, § 5804. The seven mayors are elected by vote of

all the incumbent mayors, but four of them must belong to "the

party winning the greatest number of municipalities in the general

elections immediately preceding." Id. § 5804(a). These members

serve four-year terms, roughly coincident with the four-year term

of the governor. Id. § 5804(c).

For present purposes, this scheme is informative in two

respects. First, it makes party affiliation a conspicuously

important integer in the decisional calculus and, thus, belies any

desire on the part of the legislature to insulate CRIM from

political influences. Second, even if one assumes, for argument's

sake, that it is theoretically possible for the political

affiliation of the majority on the board to differ from that of the

leadership of the central government, this would simply shift the

prevailing political agenda from one of the two major parties to

the other. Whether or not the governor's party dominates the board

of directors, some party will dominate it; that party will have an

agenda; and the regional administrators will, therefore, remain

3
These officials — the president of the Government Development
Bank and the Commonwealth's commissioner of municipal affairs — are
themselves patronage appointees.

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deeply engrossed in matters of partisan political concern. Hence,

we reject the plaintiffs' attempt to extricate this case from the

mine-run of decisions applying the Elrod-Branti doctrine.

To sum up, a multifaceted analysis of the functions of

CRIM, the attributes of the regional administrator's position, the

plaintiffs' job descriptions, and the relevant case law persuades

us that the position is open to patronage dismissals.

Consequently, the district court did not err in entering summary

judgment in favor of the defendants on the plaintiffs' political

discrimination claims.

This leaves the plaintiffs' claims under the Fifth and

Fourteenth Amendments. Those claims derive from an assertion that

each plaintiff had acquired a property interest in his regional

administrator's position, so that his dismissal — which took place

without either a hearing or a statement of cause — was in violation

of due process. These claims are groundless.

To be sure, the Constitution affords due process

protections to public employees who possess property interests in

continued public employment. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 541 (1985). But the Constitution does

not itself create property rights. Rivera-Muriente v. Agosto-

Alicea, 959 F.2d 349, 350 (1st Cir. 1992). Rather, the question of

whether a public employee possessed a protectable property interest

in a particular job is governed by local law and the terms and

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conditions of the employment arrangement. See Ortiz-Pinero, 84

F.3d at 17; Rivera-Muriente, 959 F.2d at 352.

Puerto Rico law establishes two categories of public

employees: career and confidential. P.R. Laws Ann. tit. 3, §

1349. Confidential employees, sometimes known as trust employees,

are "those who intervene or collaborate substantially in the

formation of the public policy, who advise directly or render

direct services to the head of the agency." Id. § 1350. Regional

directors of agencies are expressly included within this taxonomy.

Id. § 1350(4). The plaintiffs, vis-à-vis the positions at issue

here, are therefore confidential employees.4

That ends this aspect of the matter. The plaintiffs

admit that they ascended to the regional administrator positions by

non-competitive appointment to positions designated by Puerto Rico

law as trust positions. Appellants' Br. at 4. Unlike career

employees, who are "selected strictly on merit and can be removed

only for cause," Jimenez-Fuentes, 807 F.2d at 246, trust employees

are, under Puerto Rico law, of "free selection and removal," P.R.

Laws Ann. tit. 3, § 1350(8). Thus, the holder of a trust position

does not have a constitutionally protected property interest in

4
As mentioned earlier, each of the plaintiffs is also a career
employee vis-à-vis the position to which he was returned after
being ousted from his regional administrator's post. The
plaintiffs' career positions are not at issue here.

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that position. See Ruiz-Roche v. Lausell, 848 F.2d 5, 7 (1st Cir.

1988). Accordingly, the plaintiffs' due process claims founder.

We need go no further. Concluding, as we do, that the

position of regional administrator within CRIM is one for which

political affiliation is a valid criterion and in which the

plaintiffs had no legitimate expectation of continued employment,

we uphold the lower court's entry of summary judgment for the

defendants.

Affirmed.

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 APPENDIX

ESSENTIAL FUNCTIONS OF THE POSITION

1. PLANS, DIRECTS, SUPERVISES AND EVALUATES ALL THE ADMINISTRATIVE

ACTIVITIES OF THE [REGIONAL] CENTER.

2. ADVISES THE SUPERVISOR OF TAXPAYER SERVICES, CHATTELS AND REAL

PROPERTY IN DRAWING UP WORK PLANS AND PROPER CHANNELING OF COMPLEX

CASES.

3. ESTABLISHES THE WORK METHODS WHICH WILL INSURE THE ACHIEVEMENT

OF THE OBJECTIVES OF THE REGIONAL OFFICE.

4. DETERMINES [REGIONAL] CENTER NEEDS AND OFFERS RECOMMENDATIONS

TO MEET THE SAME.

5. DRAFTS COMMUNICATIONS AND REPORTS RELATED TO THE FUNCTIONS

WHICH S/HE PERFORMS.

6. COORDINATES EDUCATIONAL PROGRAMS AND TRAINING SESSIONS WITH

SUPERVISORS IN ORDER TO ACCOMPLISH THE PROFESSIONAL DEVELOPMENT OF

EMPLOYEES.

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7. PARTICIPATES IN GENERAL MEETINGS CALLED BY THE ASSISTANT

DIRECTOR OF REGIONAL OPERATIONAL SERVICES TO FOLLOW THE DIRECTIVES

FOR IMPLEMENTING WORK PLANS.

8. REPRESENTS THE REGIONAL OFFICE AT ASSEMBLIES, MEETINGS,

CONFERENCES OR ANY OTHER TYPE OF ACTIVITY THROUGH DELEGATION BY THE

ASSISTANT DIRECTOR OF REGIONAL OPERATING SERVICES.

9. ASSISTS DISSATISFIED TAXPAYERS FROM ALL BRANCHES (CHATTELS &

REAL PROPERTY AND TAXPAYER SERVICES) WHO COME IN SEEKING

ORIENTATION AT A HIGHER LEVEL.

10. KEEPS INVENTORY OF THE REGIONAL OFFICE'S PROPERTY.

11. KEEPS CUSTODY OF THE DOCUMENTS OF THE REGIONAL OFFICE.

12. DETERMINES NEEDS FOR MATERIALS AND EQUIPMENT AND SUBMITS

REQUISITIONS.

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