Garnier v. Rodriguez

United States Court of Appeals
For the First Circuit
__________________

No. 06-2222

CARLOS CALDERÓN GARNIER,

Plaintiff, Appellee,

v.

HON. ANABELLE RODRÍGUEZ, in her personal capacity and
as former Secretary of the Puerto Rico Department of Justice,

Defendant, Appellant,

HON. ROBERTO SANCHEZ RAMOS, in his personal capacity and
official capacity as acting Secretary of Justice;
PEDRO GOYCO AMADOR, in his personal and official capacity as
Prosecutor General of the Department of Justice;
CRUZ ESTEVEZ DE GONZALEZ in her personal and official capacity
as District Attorney of the Puerto Rico Department of Justice;
HON. SILA MARIA CALDERÓN, in her personal and official
capacity as former Governor of the Commonwealth of Puerto Rico;
JOHN DOE, unknown persons who acted or conspired violating
Plaintiff's constitutional rights and caused damages,

Defendants.
__________________

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

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

__________________

Before

Lipez and Newman,* Circuit Judges,
and Selya, Senior Circuit Judge.

__________________

Israel Roldán González for appellee.
Eduardo A. Vera Ramírez, with whom Roberto Sanchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Leticia Casalduc, Auxiliary Solicitor General, Eileen Landrón

*
Hon. Pauline Newman, of the Federal Circuit, sitting by
designation.
Guardiola, Luis A. Rodríguez Muñoz, Julio César Alejandro Serrano,
and Landrón & Vera, LLP. were on brief for appellant.
___________________

October 22, 2007

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 NEWMAN, Circuit Judge. Carlos Calderón Garnier was dismissed

from his position as an Assistant District Attorney for the

Commonwealth of Puerto Rico, by letter of dismissal from then

Governor Sila Maria Calderón, dated May 12, 2004. On May 11, 2005,

Mr. Calderón Garnier appealed to the United States District Court

for the District of Puerto Rico, invoking 42 U.S.C. §1983 and

asserting that the dismissal, the events leading to it, and the

process by which it was implemented, were politically motivated and

in violation of his civil, constitutional, and statutory rights,

including violation of the First, Fifth, and Fourteenth Amendments

of the United States Constitution, of Article 1802 of the Puerto

Rico Constitution and of Puerto Rico employment laws and laws

prohibiting political discrimination, and of the terms of his

employment. The defendants filed various motions; the district

court dismissed some counts of the complaint, but ruled that the

complaint alleged sufficient facts to state a claim based on

violation of First Amendment rights, a claim under the Due Process

clause of the Fourteenth Amendment, and claims under Puerto Rico

law. The court denied the motions for dismissal on qualified

immunity and statute of limitations grounds;1 these denials are the

subject of this appeal.

1
Calderón-Garnier v. Hon. Sanchez-Ramos, 439 F.Supp. 2d 229
(D.P.R. 2006).

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 This interlocutory appeal is taken by Hon. Anabelle Rodríguez,

a named defendant who was Secretary of Justice during most of the

period at issue. Former Secretary Rodríguez argues that the

district court erred in denying her motion for dismissal on the

ground of qualified immunity. She also argues that the Puerto Rico

one-year statute of limitations bars this action broadly, or at

least excludes her as a party defendant because she left the

position of Secretary of Justice more than one year before suit was

filed.

We receive this appeal in accordance with the principles

stated in Behrens v. Pelletier, 516 U.S. 299, 305 (1996), that the

denial of a claim of qualified immunity, if the claim turns on an

issue of law, is an appealable interlocutory ruling. See Mitchell

v. Forsyth, 472 U.S. 511, 525 (1985) ("the denial of a substantial

claim of absolute immunity is an order appealable before final

judgment, for the essence of absolute immunity is its possessor's

entitlement not to have to answer for his conduct in a civil

damages action"); Vasquez Rios v. Hernandez Colon, 819 F.2d 319,

320 (1st Cir. 1987)(interlocutory review of denial of partial

summary judgment based on claims of qualified immunity).

This review is limited to the issue of qualified immunity. As

explained in Pedraza v. Shell Oil Co., 942 F.2d 48, 55 n.10 (1st

Cir. 1991), "when presented with an interlocutory appeal from an

order denying summary judgment on the ground of qualified immunity,

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we have so far refrained from endorsing any form of pendent

appellate jurisdiction over otherwise nonappealable interlocutory

orders." See Domegan v. Fair, 859 F.2d 1059, 1061-62 (1st Cir.

1988) ("Notwithstanding that we have jurisdiction to review the

denial of qualified immunity midstream, '[a]ny additional claim

presented to and rejected by the district court must independently

satisfy the collateral order exception to the final-judgment rule

in order for us to address it on an interlocutory appeal.'")

(quoting Bonitz v. Fair, 804 F.2d 164, 173 (1st Cir. 1986)). The

denial of a motion to dismiss on statute of limitations grounds is

such a nonappealable interlocutory order. See Rivera-Ramos v.

Roman, 156 F.3d 276, 282 (1st Cir. 1998).

The appeal as to the statute of limitations issue is dismissed

for want of appellate jurisdiction.

I. BACKGROUND

In brief: in 1995 Mr. Calderón Garnier was appointed to the

position of Assistant District Attorney by the Governor of the

Commonwealth of Puerto Rico, the Honorable Pedro J. Rosselló. In

1999 Governor Rosselló reappointed the plaintiff for the statutory

term of twelve years. Governor Rosselló and the plaintiff were

affiliated with the New Progressive Party. In 2001 the Honorable

Sila Maria Calderón, affiliated with the Popular Democratic Party,

became Governor. Soon thereafter Mr. Calderón Garnier's work

schedule was changed to place him "on call" for twenty-four hours

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per day, seven days a week. He was then transferred from the

District of Aibonito to the Fajardo office, an action that he

states occurred without notice while he was on vacation; at the

Fajardo office he was again placed on the twenty-four hour, seven

day schedule. He states that this schedule was required of a few

other district attorneys, all of whom were affiliated with the New

Progressive Party. He also describes various controls and

interventions into his activities as a district attorney, which he

states were improper and politically motivated.

On October 30, 2003, during a Conference of the Public

Ministry, the plaintiff conducted a "silent protest" of the twenty-

four hour, seven day schedule by marching with a poster in the area

where the Conference was taking place. Defendant Pedro Goyco

Amador, then acting Prosecutor General, told Mr. Calderón Garnier

that he would be fired if he continued the protest. Soon

thereafter, Secretary of Justice Rodríguez ordered an investigation

of Mr. Calderón Garnier's work performance, and on December 23,

2003, Secretary Rodríguez suspended his activities as a district

attorney, stating in the letter:

Pursuant to the above, I am hereby informing you that as
of receipt of this communication you are suspended as
Assistant Prosecutor II. Such suspension is of
employment and not of salary. I further inform you that
I shall recommend to the Hon. Sila M. Calderon to dismiss
you from your present position as Assistant Prosecutor
II.

You have a term of fifteen (15) work days as of receipt
hereof to request an informal administrative hearing and

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 to present your version about the facts motivating the
disciplinary action taken. In such informal hearing, you
may [be] assisted by counsel. If you do not request the
informal hearing within the time indicated above, it will
be understood that you waive your right to the same and
I shall proceed to recommend to the Governor your
dismissal of the position you now hold without having the
benefits of your version.

(Certified translation, filed on November 8, 2006).

Mr. Calderón Garnier states that his requests for a copy of

the investigatory report before the hearing were denied, and that

despite his requests to postpone the hearing due to his medical

condition, the defendants held the hearing in his absence. By

letter dated May 12, 2004, Governor Sila Calderón dismissed him

from employment. Mr. Calderón Garnier filed this suit on May 11,

2005.

II. DISCUSSION

On de novo review of a dismissal pursuant to Rule 12(b)(6),

"assuming the truth of all well-pleaded facts . . . and indulging

all reasonable inferences in the plaintiff's favor," Nisselson v.

Lernout, 469 F.3d 143, 150 (1st Cir. 2006), a complaint is properly

dismissed for failure to state a claim "only if the facts lend

themselves to no viable theories of recovery." Luc v. Wyndham

Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007).

The qualified immunity of government officials is a shield

against unwarranted charges that the official violated the

Constitution in the course of performing the functions of the

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office. In Jordan v. Carter, 428 F.3d 67, 71 (1st Cir. 2005), this

court explained that "[i]n deference to the sensitive discretionary

judgments that government officials are obliged to make, qualified

immunity safeguards even unconstitutional conduct if a reasonable

officer at the time and under the circumstances surrounding the

action could have viewed it as lawful." The Court has stressed the

importance of resolving issues of immunity at the start of the

litigation, lest unwarranted lawsuits impede the proper functioning

of government. Hunter v. Bryant, 502 U.S. 224, 227 (1991). As the

district court observed, there is no heightened pleading standard

in §1983 actions unless specifically required by statute or rule.

Ecuadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66-

67 (1st Cir. 2004).

The issue before the district court was whether, on the well-

pleaded allegations, Secretary Rodríguez's actions were protected

by qualified immunity. To grant the motion for dismissal on this

ground, there must be no reasonable basis on which Mr. Calderón

Garnier could establish the requisite criteria of §1983 whereby (1)

a constitutional right was violated, (2) the right was clearly

established at the time of the challenged conduct, and (3) a

reasonable official would have understood that the challenged

conduct violated that established right. Jordan v. Carter, 428

F.3d at 71-72. See generally Davis v. Scherer, 468 U.S. 183, 191

(1984); Durieux-Gauthier v. Lopez-Nieves, 274 F.3d 4, 9 (1st Cir.

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2001). Former Secretary Rodríguez argues that these criteria were

not met.

The district court observed that to state a claim under §1983

the plaintiff must identify "an act or omission undertaken under

color of state law," citing Aponte-Torres v. University of Puerto

Rico, 445 F.3d 50, 55 (1st Cir. 2006). The court concluded that

this requirement was satisfied in that the actions were taken by

officers of the Puerto Rico Department of Justice, and it is not

disputed that the actions were taken under color of state law.

As to the question of whether Mr. Calderón Garnier was

deprived of a federally secured right, the court ruled that on the

pleadings, an inference of political discrimination and of

protected speech is plausible. Although the defendants deny that

their actions were politically motivated or discriminatory, the

only issue before us is the supportability of the district court's

denial of the motion to dismiss on qualified immunity grounds. It

is well established that "[i]n section 1983 cases asserting a First

Amendment claim, the plaintiff need only allege facts sufficient to

enable a reasonable inference that the employer retaliated, at

least in part, in response to constitutionally protected speech,"

Nethersole v. Bulger, 287 F.3d 15, 18-19 (1st Cir. 2002) (emphasis

in original), for the "'causation' or 'motivation' element normally

presents a factfinding responsibility for the jury." Id.

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 The district court found that the facts set forth in the

complaint suffice to establish that Mr. Calderón Garnier was fired

due to his political affiliation and in retaliation for his

protest, and that they support the allegation that he was fired

without due process. He states, without dispute, that he was

appointed by the Governor to a twelve-year term pursuant to P.R.

Laws Ann. tit. 3 § 293w, and by statute was removable only for the

reasons stated by statute and through procedures set by regulation.

The district court observed that under Puerto Rico law a prosecutor

can be terminated only by the Governor, and that the charges

leading to termination must be proven, citing P.R. Laws Ann. tit.

3, § 93b. Reviewing the pleadings, the district court stated, as

to the allegation of retaliation for his public protest at the

Ministers Conference, that it "cannot hold that there is no set of

facts consistent with the complaint that would entitle the

plaintiff to relief."

Further as to the due process count, former Secretary

Rodríguez argues that Mr. Calderón Garnier did not have a property

interest in his position, and thus cannot have been deprived of

property without due process. Precedent does not support this

position. "Under Puerto Rico law, career employees have a property

interest in their continued employment." Gonzalez-de-Blasini v.

Family Dep't, 377 F.3d 81, 86 (1st Cir. 2004). "Property interests

are not created by the Constitution, but are rooted in an

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independent source such as state law." Kercado-Melendez v. Aponte-

Roque, 829 F.2d 255, 262 (1st Cir. 1987) (under Puerto Rico law the

plaintiff had a property interest in her appointment as the

superintendent for the Dorado School district).

The district court concluded that Mr. Calderón Garnier was

more than an at-will employee, and that he had a sufficient

property interest to support a §1983 claim for deprivation of due

process. In Cleveland Board of Education v. Loudermill, 470 U.S.

532, 541 (1985), the Court stated:

"Property" cannot be defined by the procedures provided
for its deprivation any more than can life or liberty.
The right to due process "is conferred, not by
legislative grace, but by constitutional guarantee.
While the legislature may elect not to confer a property
interest in [public] employment, it may not
constitutionally authorize the deprivation of such an
interest, once conferred, without appropriate procedural
safeguards."

(Alteration in original) (quoting Arnett v. Kennedy, 416 U.S. 134,

167 (1974)). Although former Secretary Rodríguez disputes that

such a property interest inheres in this case, and disputing that

due process was not accorded, the district court did not err in

holding that those defenses cannot be sustained at the pleading

stage.

Former Secretary Rodríguez also argues that constitutional due

process does not require state officials to comply with the

procedures of state laws and regulations, citing Creative

Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir.

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1982), wherein this court noted that an unlawful departure from

established state law procedures may not give rise to a federal due

process claim when the state has itself provided adequate

safeguards to review and rectify an erroneous administrative

action. If there were such safeguards as to Mr. Calderón Garnier's

termination they were not elaborated in the pleadings, and do not

provide a basis for dismissal of the complaint at this stage.

We offer no view as to the ultimate determination of the

merits of the case. We affirm the district court's application of

the principles governing dismissal at the pleading stage, for we

agree that it does not appear "beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief." Diaz-Ramos v. Hyundai Motor Co., ___ F.3d ___,

2007 WL 2446865 at *2 (1st Cir. Aug. 30, 2007). The allegations of

the complaint, taken at their well-pleaded value, sufficed to show

that a clearly established constitutional right had been violated,

and that a reasonable official would have understood that the

challenged conduct may have violated that right. We affirm the

district court's conclusion that the qualified immunity defense was

not established at this early stage of the litigation.

Affirmed.

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