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,
-2-
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
-3-
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."
-4-
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.
-5-
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.
-6-
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.
-7-
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.
-8-
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
-9-
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).
-10-
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).
-11-
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
-12-
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
-13-
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.
-14-
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
-15-
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).
-16-
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,
-17-
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
-18-
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
-19-
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.
-20-