United States Court of Appeals
For the First Circuit
No. 04-2596
LUZ H. OLMEDA; OMAR MARRERO-OLMEDA;
KATHLEEN MARRERO-OLMEDA,
Plaintiffs, Appellees,
v.
HERMENEGILDO ORTÍZ-QUIÑÓNEZ; JOSÉ AUGER-MARCHAND;
CARMEN MODESTA CARRERO-TORRES; WANDA MARRERO-VELASQUEZ; and
REINALDO ALEGRÍA-RODRÍGUEZ, in their personal capacities;
ANGEL D. RODRÍGUEZ, in his personal and official capacity as
President of the Puerto Rico Planning Board,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Eduardo A. Vera-Ramírez with whom Roberto Sanchez-Ramos,
Secretary of Justice, Salvador Antonetti, Solicitor General, Jo Ann
Estades-Boyer, Director, Federal Litigation Division, Department of
Justice, Eileen Landrón-Guardiola and Landrón & Vera, LLP were on
brief for appellants.
*
Of the Northern District of California, sitting by
designation.
Carlos R. Ramírez with whom John F. Nevares and John F.
Nevares & Associates, PSC were on brief for appellees.
January 12, 2006
BOUDIN, Chief Judge. Luz Olmeda, who holds degrees in
law and economics, has been employed by the Puerto Rico Planning
Board for over twenty years. The Board is a legislatively created
agency of the Puerto Rico government, comprising part of the
governor's office and endowed with a broad mandate in the field of
economic and social planning for Puerto Rico. 23 L.P.R.A. §§ 62a,
62c. Among other things, it is charged with crafting zoning and
land use regulations, preparing long-term social and economic
development plans, and advising the governor and legislature on
general planning and development issues. Id. § 62j.
From 1995 to 2001, Olmeda held the position of Director
of the Economic and Social Planning Program. In 2000, a new
governor representing the Popular Democratic Party ("PDP") was
elected, replacing a governor who belonged to the New Progressive
Party ("NPP"). Olmeda, who is affiliated with the NPP, requested
and was granted a transfer to the career position of Assistant
Planning Executive I; her transfer was made effective on July 1,
2001. Her salary was set at $3,591 per month plus a "differential"
of $931 per month, granted because of her expertise.
According to Olmeda, after the election and upon assuming
her new position, she was subjected to adverse action based on her
political affiliation. She says (in her present complaint) that
she was largely stripped of her duties, which were reassigned to an
employee of the Board affiliated with the PDP; that she was subject
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to verbal abuse from two Board employees; that other officials
failed to respond to Olmeda's complaints; that her salary
differential was eliminated after an audit asserted that she was
not entitled to it; and that in August 2002 she was transferred to
a new position as Acting Coordinator of the Office of Federal
Proposals of the Economic Analysis Subprogram.
On August 20, 2002, Olmeda filed this action, seeking
several million dollars in actual and punitive damages under both
section 1983, 42 U.S.C. § 1983 (2000), and Puerto Rico law. The
main federal claim was for political discrimination.1 The
defendants included two successive heads of the Board who had been
appointed by the new governor and several other employees said to
have participated in these wrongs either by action or, in failing
to provide relief, by inaction.
After initial discovery, including a deposition of
Olmeda, the defendants moved for summary judgment, arguing that
they were entitled to qualified immunity (Olmeda also cross-moved
for partial summary judgment in her favor on her political
discrimination claims). Defendants contended, inter alia, that
under the governing case law on the federal political
discrimination claim, Olmeda's position was not one protected
1
Though Olmeda's complaint also made a passing reference to a
due process claim against the defendants, Olmeda has never
explained the nature of the claim, nor did she defend the claim
when it was challenged by defendants in their motion for summary
judgment.
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against politically motivated adverse action. The district court
denied the defendants' motion (as well as Olmeda's cross-motion),
saying only that there were "contested issues of material fact."
The defendants have now sought review in this court.
Qualified immunity doctrine protects government officers
and employees from suit on federal claims for damages where, in the
circumstances, a reasonable official could have believed his
conduct was lawful. Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d
36, 41 (1st Cir. 2004). The immunity is not merely from damages,
but (with some qualifications) from having to endure a trial. So--
as a court-made exception to the final judgment rule--immediate
appeals are permitted from such denials. Id. at 39-40.
One wrinkle is that the Supreme Court has disallowed such
an immediate appeal where the district court's denial of immunity
rested upon its determination--whether right or wrong--that
immunity turned on a disputed issue of material fact. Johnson v.
Jones, 515 U.S. 304, 319-20 (1995). Yet, whatever the district
court's reasoning, immediate appellate review is still permitted if
immunity is required as a matter of law regardless of how the
factual issue is resolved. Rodríguez-Rodríguez, 391 F.3d at 39-40.
In the present case, there may well be disputed factual
issues as to whether Olmeda suffered significant adverse employment
action and, if so, whether this was motivated at least in part by
hostility to her political affiliation. However, the defendants'
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main claim on appeal--that Olmeda's job is not constitutionally
protected against political discrimination--does not require that
any disputed factual issue be decided. To that extent, we have
jurisdiction to consider defendants' claim to immunity, regardless
of the district court's own reasons for denying the motion. Id. at
40.
There is one more complication. Although qualified
immunity requires merely that a reasonable official could believe
that his conduct was lawful, the Supreme Court has directed that
the qualified immunity inquiry itself begin by asking whether on
the facts alleged there is a constitutional violation at all.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Saucier's inversion has
its own logic, see id., but it has the potential to cause problems
where answering this first question in the abstract is difficult.
See Dirrane v. Brookline Police Dep't, 315 F.3d 65, 69-70 (1st Cir.
2002).
A first amendment right to protection against political
discrimination was recognized by the Supreme Court about thirty
years ago in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.
Finkel, 445 U.S. 507 (1980). See also Rutan v. Republican Party of
Ill., 497 U.S. 62 (1990). Where improper motive is shown, the
employee is protected against significant adverse employment
action-–this is a loose formulation--but the right exists only
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where the job is one for which political affiliation is an improper
criterion.
Elrod and Branti involved employees engaged in
comparatively routine work, and protection was not extended to jobs
for which "party affiliation is an appropriate requirement."
Branti, 445 U.S. at 518. Were the rule otherwise, no new
administration would be able effectively to implement its own
policies. The federal claim does not turn on whether a state has
chosen to afford civil service protection to a job, see
Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 133 (1st Cir.
2005), but on Branti's "appropriateness" requirement, which is
extensively glossed in the case law in this circuit.
In a nutshell, protection does not extend to positions
which potentially "involve decision making on issues where there is
room for political disagreement on goals or their implementation"
and where the jobholder is a policymaker, confidential assistant,
spokesman, or similar officeholder. Ortiz-Piñero v. Rivera-Arroyo,
84 F.3d 7, 12 (1st Cir. 1996) (internal quotation marks omitted);
see also Flynn v. City of Boston, 140 F.3d 42, 44-45 (1st Cir.
1998), cert. denied, 525 U.S. 961 (1998). Actual functions of the
job, not titles, control, id. at 44, and an official description of
job functions is a presumptively reliable basis for determining
those functions, Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 8
(1st Cir. 2001).
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In this instance, there is a detailed official job
description for Olmeda's position. Olmeda alleged no facts
contradicting the description; indeed, at her deposition, she
seemingly endorsed the description. Once an understanding of the
functions is ascertained, it is a question of law whether they
invoke constitutional protection. Flynn, 140 F.3d at 44. If not,
Olmeda may have civil service or other protection under Puerto Rico
law since she converted to a "career" position, but the Elrod and
Branti line of cases does not apply and the defendants are
protected.
That the Board has policy involvement at the highest
level is beyond dispute. By statute, the Board is charged with
"guiding the integral development of Puerto Rico" in order to best
promote "health, safety, order, coexistence, prosperity, defense,
culture, economic stability and general welfare," in addition to
crafting policies for "the process of development," "the
distribution of population," "the use of land," and "public
improvements." 23 L.P.R.A. § 62c. The statute spells out
extensive duties in analysis and coordination of other agencies.
See, e.g., id. §§ 62j, 62l.
This merely sets the stage. If Olmeda were a staff
typist or a receptionist, she would still likely be protected. Her
duties are outlined in the official seven-page "description of
position," which describes the "essential duties" of her position
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as follows (the "Program" referred to in this list is "Economic and
Social Planning"; the "Subprogram" is "Economic Analysis"):
Plans, coordinates, directs, supervises and
evaluates the work of the personnel that
performs highly technical and specialized
studies related to the activities developed in
the Subprogram.
Gives guidance and advises the Director of the
Program and Subprogram on theoretical and
technical aspects related to the national
accounts and other jobs performed in the
subprogram.
Advises the Director of the Subprogram about
the implementation of public policy, law,
regulations, norms and procedures that are
applicable to the same.
Conducts meetings with the coordinators and
technical assistants of the Subprogram and
with its designated consultants, to discuss
and coordinate aspects of work planning with
amendments received in the Subprogram.
Participates in the preparation and analysis
of different special missions regarding
economic impact, news commentaries, special
Bills and others.
Represents the Board in committees, forums,
seminars, conferences and other activities
related to their field, as designated.
Analyzes, evaluates and issues opinions and
recommendations regarding reports, projects
and proposed laws and other documents that are
referred.
Studies, analyzes and evaluates norms,
regulations, instructions and complex
situations related to activity field and
submits reports or discusses action
alternatives and specific recommendations with
Supervisor.
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Participates in the selection, training and
evaluation of designated personnel.
Welcomes visitors and officials from Puerto
Rico and other countries whenever required.
Establishes contacts with public and/or
private entities in order to coordinate issues
related to the job.
Helps prepare the economic Report for the
Governor and other publications prepared in
the Subprogram.
Participates in the preparation of the Budget
Petition and in the Subprogram work plan.
Prepares and submits periodic reports on the
work done to the Director of the Subprogram.
Represents the Board in public and
administrative hearings where issues related
to the field of work are discussed, as
required.
Goes to training and development activities
and to meetings of orientation or discussion
of work plans, as required.
Does other duties as assigned.
The cases have not been able to come up with a terse
formula or standard for describing policy-related positions that
are outside the constitutional constraint. Yet as we observed in
Flynn, our circuit has "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." 140 F.3d at 45. "[I]t is enough that the official
be involved in policy, even if only as an adviser, implementer, or
spokesperson." Id. at 46.
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Olmeda's job description makes clear that she is an
official, that she is involved in policymaking at least as an
adviser, and that she is expected on occasion to serve as a
representative of the Board itself. Olmeda emphasizes her
technical training and its utility in her job, and we accept that
this is so. But an employee otherwise involved in policy is not
protected merely because the employee is "guided in some . . .
functions by professional or technical standards." Id.
Olmeda's job description outlines a number of policy-
oriented duties: the occupant "[a]nalyzes, evaluates and issues
opinions and recommendations regarding reports, projects and
proposed laws and other documents that are referred" and
"[s]tudies, analyzes and evaluates norms, regulations, instructions
and complex situations related to activity field and submits
reports or discusses action alternatives and specific
recommendations with Supervisor." This is not the work of a typist
or receptionist.
The best indication of where the cases draw the line is
a sampling of unprotected jobs. E.g., Galloza v. Foy, 389 F.3d 26,
31-32 (1st Cir. 2004) (regional tax administrator); Flynn, 140 F.3d
at 45-46 (overseers of multiple community centers); Zayas-Rodriguez
v. Hernandez, 830 F.2d 1, 3 (1st Cir. 1987) (audit director who
counseled a senior official about policy matters and supervised
employees). By contrast, as we pointed out in Flynn, the Supreme
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Court cases have tended towards protection for "a floor supervisor,
a guard, a process server, an assistant public defender, a
rehabilitation counselor, a road equipment operator, a garage
worker, and a dietary manager." Id. at 45 (citing the pertinent
cases).
On such a spectrum, Olmeda's case is not close: she is
not federally protected against political discrimination and the
federal damage claims are barred by qualified immunity. Olmeda
also seeks injunctive relief, which is not barred by qualified
immunity, but our ruling on Olmeda's status removes the basis for
federal-claim injunctive relief as well. Olmeda's claims under
Puerto Rico law remain open, but can be dismissed without prejudice
if the district court chooses. 28 U.S.C. § 1367(c) (2000).
The district court's order denying qualified immunity is
vacated and the matter remanded for proceedings consistent with
this decision. Each side shall bear its own costs on this appeal.
It is so ordered.
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