United States Court of Appeals
For the First Circuit
No. 07-1976
SAMUEL LÓPEZ-QUIÑONES; IRIS GRISEL NIEVES-HERNÁNDEZ;
CONJUGAL PARTNERSHIP LÓPEZ-NIEVES,
Plaintiffs, Appellees,
v.
PUERTO RICO NATIONAL GUARD; COMMONWEALTH OF PUERTO RICO;
WILLIAM VÁZQUEZ-IRIZARRY, In his official Capacity as Secretary of
Justice of the Commonwealth of Puerto Rico; MILAGROS MORENO-RAMOS;
CONJUGAL PARTNERSHIP COLÓN-MORENO; JOE DOE; CONJUGAL PARTNERSHIP
DOE-BURGOS; JOHN DOE; CONJUGAL PARTNERSHIP DOE-APONTE; ARTURO
DÁVILA; CONJUGAL PARTNERSHIP DÁVILA-MARTÍNEZ; SARA DOE; CONJUGAL
PARTNERSHIP REYES-DOE; ABC INSURANCE COMPANY; CONJUGAL PARTNERSHIP
MÁRQUEZ-DOE; CONJUGAL PARTNERSHIP SANTIAGO-DOE; MRS. SANTIAGO,
Defendants,
FRANCISCO A. MÁRQUEZ-HADDOCK, JUAN E. COLÓN-GARCÍA; JOSEFA BURGOS-
REYES; EVA APONTE-MARICHAL; MARIMIR MARTÍNEZ-MORALES; NELSON REYES-
AVILÉS; SAMUEL SANTIAGO-RAMÍREZ,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Selya, Senior Circuit Judge.
Jorge Martínez-Luciano with whom William O'Connor was on brief
for defendants, appellants.
Efraín Maceira-Ortiz for appellees.
May 21, 2008
BOUDIN, Chief Judge. Samuel Lopez-Quinones--a former
official of the Puerto Rico National Guard--claims he was terminated
from that position on account of his political affiliation. He sued
the Commonwealth of Puerto Rico, the Puerto Rico National Guard, and
various officials, seeking relief primarily under 42 U.S.C. § 1983
(2000). This interlocutory appeal presents only the question whether
the individual defendants are entitled to qualified immunity from
Lopez' damage claims.
Lopez was hired as director of the general services
section of the Puerto Rico National Guard in 1997. In the 2000
elections, the Popular Democratic Party ("PDP") defeated the New
Progressive Party ("NPP"). Lopez--a known supporter of the NPP--
claims that after the election, he was gradually stripped of his
professional duties. In July 2004, disciplinary proceedings were
instituted against him within the National Guard.
Lopez then filed suit in federal district court in Puerto
Rico, seeking injunctive and monetary relief. In July 2005, while
his suit was pending, Lopez was terminated. He sought preliminary
injunctive relief ordering his reinstatement and amended his
complaint to reflect the fact of his termination. In October 2006,
the district court denied Lopez' request for preliminary injunctive
relief.
Shortly thereafter, the individual defendants moved for a
ruling on their previously asserted defense of qualified immunity.
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They urged that Lopez' position was not protected from political
patronage firings under the Elrod/Branti line of cases, see Elrod v.
Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980),
and that in any event, defendants were entitled to qualified immunity
because any such protection was not clearly established at the time
of Lopez' termination.
The district court denied the motion, and defendants filed
this interlocutory appeal. Although the district court's order is
not a final disposition of the case, we have jurisdiction to the
extent defendants seek review of the district court's denial of their
qualified immunity defense, Torres v. Puerto Rico, 485 F.3d 5, 8-9
(1st Cir. 2007), but only so far as it rests on a legal ruling rather
than a factual dispute. Riverdale Mills Corp. v. Pimpare, 392 F.3d
55, 60 (1st Cir. 2004). As to the legal questions, our review is de
novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004).
The qualified immunity defense depends on whether the
nature of Lopez' position was such that defendants were entitled to
consider his political affiliation as a job qualification and, even
if they were not, whether a reasonable officer at the time would have
understood patronage dismissal to be barred. See Limone v. Condon,
372 F.3d 39, 44 (1st Cir. 2004). Analytically, the second question
may often be answered without resolving the first, but in accordance
with Saucier's preferred approach, we generally--although not always-
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-answer the questions in sequence. Saucier v. Katz, 533 U.S. 194,
201 (2001).
In Elrod, the Supreme Court announced a new rule rendering
patronage firings a violation of the First Amendment save where
political affiliation is an appropriate qualification for the
particular position. Elrod, 427 U.S. at 367-68; Branti, 445 U.S. at
518. Yet, as we said in Flynn v. City of Boston, 140 F.3d 42, 44
(1st Cir.), cert. denied, 525 U.S. 961 (1998), doctrine in this area
remains
largely a porridge of general statements and
variables: positions are less likely to be
protected to the extent that they are
"higher," more "political," more
"confidential," and so on; duties prevail over
titles; everything depends on circumstances.
Our decisions have asked whether a position's functions
are those of "a policymaker, a privy to confidential information, a
communicator, or some other office holder whose function is such that
party affiliation is an equally appropriate requirement." Jimenez
Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir. 1986) (en
banc), cert. denied, 481 U.S. 1014 (1987); see also Flynn, 140 F.3d
at 45. "Actual functions of the job, not titles, control, and an
official description of job functions is a presumptively reliable
basis for determining those functions." Olmeda v. Ortiz-Quinonez,
434 F.3d 62, 66 (1st Cir. 2006) (citation omitted).
We also consider the position's "relative pay" and whether
it entails "technical competence, power to control others, authority
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to speak in the name of policymakers, public perception, contact with
elected officials and responsiveness to partisan politics and
political leaders." Mendez-Palou v. Rohena-Betancourt, 813 F.2d
1255, 1259 (1st Cir. 1987). Under the case law, the classification
of a position as "career" (rather than "trust") under Puerto Rico law
is relevant, although not dispositive. Roldan-Plumey v. Cerezo-
Suarez, 115 F.3d 58, 64-65 (1st Cir. 1997).
As director of the general services section, Lopez headed
the unit of the Guard responsible for inventory (not including
military equipment), utilities, property maintenance and related
functions. He supervised approximately thirty other employees. Both
are factors tending to indicate that one's position involves
discretionary judgments, which in turn often entail policymaking.
See Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 132 (1st Cir.
2005). He earned just over $30,000 per year and his job
classification form said that review of his work was "superficial"
(as opposed to "thorough").
On the other hand, Lopez' position was classified as a
"career" position under Puerto Rico law and a closer look at his
detailed job description suggests that he had modest, if any,
involvement in policymaking. True, the first listed responsibility
is spacious ("Plans, coordinates and supervises the activities of the
general services section relating to maintenance, property,
purchasing, transportation, reproduction, inventory, receiving
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equipment, leasing of establishments and general services"), but
almost all of the specifics are routine and fairly pedestrian. They
include (merely as examples) responsibility for:
hiring air-conditioning and radio
maintenance services, radios, fumigation,
cleaning and others, whether with federal or
state funds;
matters relating to the telephone
service (switchboard) and state transportation
(regulations, use, etc.);
seeing that the agency is provided with
[utility] service of water, electricity and
telephone;
supervis[ing] the work of employees
working in the state warehouse, their
purchasing, inventories, etc.;
oversee[ing] proper filling in of
purchasing logs and controls and control of
existing property;
revis[ing] and coordinat[ing] matters
relating to the maintenance and cleaning of
the agency; and
[supervising] employee training in the
computer and programming system.
In addition, a number of the functions involve reporting
and other paperwork matters; most look mechanical (e.g., "responsible
for seeing that all contracts are filed with the P.R. Comptroller's
Office pursuant to provisions"), although a few could--but not
necessarily would--involve policy judgments depending on the precise
role Lopez actually played in the process (e.g., "supervises bids
carried out in the section's purchasing area").
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So far as appears, Lopez' job did not involve advising any
senior officials on policy matters. He did not operate as a
spokesperson or otherwise liaise with the public or other government
agencies, except in ways largely ministerial. His job does not
appear to have entailed discretionary judgments involving the
implementation of policy, broadly understood. As to bid supervision,
the district court found that Puerto Rico law largely divested Lopez
of discretion in handling bids of significant size.
Lopez did supervise approximately thirty other employees,
but they were mostly janitors and other lower-level employees. It is
hard to see how Lopez' position implicates significant policy issues,
let alone "partisan political interests . . . [or] concerns,"
Branti, 445 U.S. at 519, nor does he appear to be one of those mid-
or upper-level officials or employees who are "significantly
connected to policy-making." Flynn, 140 F.3d at 45.
Although Lopez reported directly to a political appointee,
defendants have failed to identify policy decisions in which Lopez
was directly involved or over which he had influence. Their main
argument is that the Puerto Rico National Guard is involved in
operations--such as law enforcement and natural disaster relief--that
involve policymaking and implicate partisan concerns; that as
director of general services Lopez was involved in procuring and
maintaining the Guard's inventory and property; and that because a
proper supply chain is critical to any successful operation, Lopez
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was well positioned to frustrate any programs or operations with
which he disagreed.
This argument proves too much. Any malfunctioning cog can
jam the gears. An ability to undermine operations through
incompetence or malfeasance does not mean the actor engaged in
policymaking or was a confidante or spokesman for policymakers.
Hadfield v. McDonough, 407 F.3d 11, 18 n.4 (1st Cir.), cert. denied,
546 U.S. 961 (2005). On "the spectrum between policymaker and
clerk," Mendez-Palou, 813 F.2d at 1259, Lopez was closer to the
latter and is, at least on the present record, protected under Elrod.
Whether his termination was in fact politically motivated is a quite
different question.
Still remaining is the question whether his status was
clearly established at the time of his termination. Of course, the
abstract right of a non-policy-related employee to be free from
politically motivated termination dates from Elrod and Branti; but
this is not enough to defeat qualified immunity. The purpose of
qualified immunity is to protect reasonable, if mistaken, decision
making by government officials, Jordan v. Carter, 428 F.3d 67, 71
(1st Cir. 2005), and it does not matter whether the mistake is
related to broad principle or specific application.
The crucial question here is whether a reasonable official
acting at the time of Lopez' termination should have known on what
side of the Elrod/Branti line Lopez' own position fell. Mendez-Palou,
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813 F.2d at 1259. Largely for prudential reasons, the test is not
subjective but asks what a reasonable official would have thought.
Pagan v. Calderon, 448 F.3d 16, 31 (1st Cir. 2006). On the present
facts, this is a close call but the issue is treated as one of law,
Ruiz-Casillas, 415 F.3d at 131; and, in disagreement with the able
district judge, we believe that as the law stood when the decision
was made a reasonable official could (albeit mistakenly) have deemed
Lopez outside Elrod/Branti's protection.
As already explained, a few features of Lopez' position in
combination might have led reasonable superiors of Lopez involved in
the termination decision to believe he was subject to patronage
dismissal: for example, that he headed the unit in question, that
some of his duties were broadly phrased (even if seemingly less
impressive in practice), that he was fairly well paid and his
position lightly supervised, that he reported directly to a political
appointee and that he supervised thirty other employees.
Defendants also point to two prior First Circuit opinions
in which we held that the Personnel and General Services Officer in
the Ombudsman's Office and the Regional Director of the Puerto Rico
General Services Administration were subject to political dismissal.
See Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4 (1st Cir. 2001);
Roman Melendez v. Inclan, 826 F.2d 130 (1st Cir. 1987). Both cases
are distinguishable because the jobs were classified as "trust"
positions, and involved supervision of large numbers of employees,
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discretionary provision of government services, and/or representation
of the agency before the public and other agencies.
But, weighing in defendants' favor, the job titles are
similar, and in Roman Melendez we noted that "in every case
concerning regional directors of government agencies in Puerto Rico,
we have concluded, at least for purposes of qualified immunity, that
a regional director was, in fact, a policymaker." 826 F.2d at 134.
Those reading our past decisions like Duriex-Gauthier could
reasonably have believed that in general, middle managers with
impressive sounding titles and duties were generally outside the
protected category.
The district court's own contrary decision rests
significantly on a possible ambiguity in our own case law, which we
now repair. Some of our precedents may suggest that even if an
official has significant policymaking responsibility, he is still
protected unless it is also established that the policy judgments are
those for which "partisan" political motivations or judgments are
appropriate, e.g., Jimenez Fuentes, 807 F.2d at 241-42; by contrast,
other language from our case law indicates that involvement in policy
or matters implicating political disagreement is sufficient. E.g.,
Flynn, 140 F.3d at 46; see also Tomczak v. City of Chicago, 765 F.2d
633, 641 (7th Cir. 1985).
It is conceivable that there are rare cases where the
distinction might matter--say, a high official whose duties were
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nonetheless entirely technical. Jimenez Fuentes, 807 F.2d at 240.
But for the most part policymaking is in the nature of things the
basis for preserving the right of the democratic political process to
operate; civil service protections can be afforded by statute but the
Constitution does not require them. The reference to "partisan"
politics comes from Branti but it is far from clear that it comprised
a separate test. 445 U.S. at 519.
And for his part, plaintiff has not cited any analogous
First Circuit cases that would have put defendants on notice of
jeopardy. Given past precedent, we cannot say it was clearly
established that Lopez, a director of a significant unit within the
Puerto Rico National Guard, was insulated from political dismissal.
Accordingly, while Lopez may seek injunctive relief for his
termination, he may not obtain monetary relief from the individual
defendants in their personal capacities.
The order denying qualified immunity is vacated and the
matter remanded for further proceedings consistent with this
decision. The damage claims against the individual defendants in
their personal capacities are barred but the suit may otherwise
proceed. All parties will bear their own costs.
It is so ordered.
--Concurring and Dissenting Opinion Follows--
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TORRUELLA, Circuit Judge (Concurring in part, Dissenting
in part). Since 1976, the United States Supreme Court has held that
the First Amendment forbids the discharge of "public employees solely
for not being supporters of the political party in power, unless
party affiliation is an appropriate requirement for the position
involved." Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990)
(citing Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445
U.S. 507 (1980)). That inquiry -- whether political affiliation is
a valid requirement of the job in question -- is the necessary
starting point for political discharge cases. Limone v. Condon, 372
F.3d 39, 44 (1st Cir. 2004).
This circuit leads the nation as one of the most prolific
generators of political discrimination cases; in this area of
litigation, the District of Puerto Rico has the dubious distinction
of being the most fecund district in the circuit. See Morales-
Santiago v. Hernández-Pérez, 488 F.3d 465, 466 (1st Cir. 2007) ("[I]n
Puerto Rico, a change between the Popular Democratic Party (PDP) and
the New Progressive Party (NPP) [gives rise to] overly zealous
political operatives of the prevailing party terminat[ing],
demot[ing], or reduc[ing] the salaries of employees affiliated with
the outgoing opposition party."). As a result of the proliferation
of these cases and their public notoriety, the legal precepts
established by them are widely known in Puerto Rico, particularly by
those in public administration. It is, therefore, inconceivable in
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this day and age that a reasonable public official would by-pass an
inquest into whether a position in a government agency requires
political affiliation before taking the drastic action of firing an
employee based on party affiliation. Considering the state of the
law, one who fails to do so can hardly be classified as a reasonable
public official.
Any reasonable public official conducting such an inquiry
would have concluded that López-Quiñones's position was not one
requiring political affiliation. Indeed, by following the long-
established case law in this circuit, the majority properly reaches
the conclusion that López-Quiñones's non-policy related position was
protected from political patronage dismissal. Slip op. at 9 ("On the
spectrum between policymaker and clerk, López[-Quiñones] was closer
to the latter and is, at least on the present record, protected under
Elrod.") (internal quotation marks and citation omitted).
In reaching this conclusion, the majority begins its
analysis with López-Quiñones's detailed job description. See slip
op. at 5. Based on the job description, the majority finds that: (1)
López-Quiñones was holding a "career" position under Puerto Rico law,
id. at 6; (2) "almost all of the specific[] [tasks were] routine and
fairly pedestrian," id. at 7; (3) his reporting and paperwork duties
"most[ly] look mechanical," id.; (4) he was "not involve[d in]
advising any senior officials in policy matters," id. at 8; (5) he
"did not operate as a spokesperson or otherwise liaise with the
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public or other government agencies, except in ways largely
ministerial," id.; (6) he did not have "discretionary judgment[]
involving the implementation of policy, broadly speaking," id.; and
(7) he supervised "mostly janitors and other low-level employees."
Id. Significantly, citing to both Branti, 445 U.S. at 519, and to
Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998), the
majority states that "[i]t is hard to see how López[-Quiñones's]
position implicates significant policy issues, let alone 'partisan
political interests . . . [or] concerns,' . . . nor does he appear
to be one of those mid- or upper-level officials or employees who are
'significantly connected to policy-making.'" Slip op. at 8. On
these facts, the majority concludes that López-Quiñones's position
was not subject to patronage dismissal. I am in full agreement.
It is in the granting of immunity that I part company with
my learned colleagues. Under our qualified immunity law, after
finding that a constitutional right was violated, we turn to whether
the law was clearly established at the time of the violation and
whether a reasonable public officer would have understood that he was
violating that right. See Sueiro Vázquez v. Torregrosa de la Rosa,
494 F.3d 227, 234 (1st Cir. 2007). I disagree with the majority's
conclusion that "as the law stood . . . a reasonable official could
(albeit mistakenly) have deemed López[-Quiñones] outside
Elrod/Branti's protection." Slip op. 10. As made evident by the
majority's own application of our clearly established law, López-
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Quiñones's position was not subject to patronage dismissal. In
deciding to terminate López-Quiñones from his position, the officials
in this case recklessly ignored the established law of this circuit.
Such behavior should lead to the dispossession of the mantle of
qualified immunity, rather than the extension of this privilege to
them.
The majority is able to conclude that the appellants are
entitled to immunity because it gives undue weight to the fact that
López-Quiñones's "job title [is] similar" to two prior cases
"concerning regional directors of government agencies in Puerto
Rico." Id. at 11 (citing Duriex-Gauthier v. López-Nieves, 274 F.3d
4 (1st Cir. 2001) and Román Meléndez v. Inclán, 826 F.2d 130 (1st
Cir. 1987)). In so doing, the majority violates those very
principles to which it claims adherence only a few pages earlier. As
we have warned, the inquiry into the legitimacy of political
patronage requires an inquiry that goes beneath the mere title of the
position. See, e.g., Olmeda v. Ortiz-Quiñonez, 434 F.3d 62, 66 (1st
Cir. 2006) ("Actual functions of the job, not titles, control, and an
official description of job functions is a presumptively reliable
basis for determining those functions." (internal citations
omitted)); Flynn, 140 F.3d at 44 (noting that "duties prevail over
titles"). Unfortunately, it appears that the majority's invocation
of this principle was mere lip service; in its grant of immunity, the
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majority inexplicably applies an entirely different and contradictory
standard.
Even if the job titles in Duriex-Gauthier and Román
Meléndez are similar to that of López-Quiñones, the employees' actual
responsibilities are substantially different. The employees in
Duriex-Gauthier and Román Meléndez held "trust positions;" exercised
meaningful supervision of a large number of employees; enjoyed
discretion over the particular government services under their aegis;
and represented their respective agencies before the public and other
government entities. Duriex-Gauthier, 274 F.3d at 7-8, 10; Román
Meléndez, 826 F.2d at 134-35. In contrast, none of those
prerogatives or powers are present here.
Most importantly, unlike the employees in Duriex-Gauthier
and Román Meléndez, López-Quiñones was not involved in making or
recommending any agency policy. There is nothing in the record to
support a finding that López-Quiñones was a policymaker. The
majority opinion describes him as having only "modest, if any,
involvement in policymaking," slip op. at 6, and even the appellants
"failed to identify policy decisions in which López[-Quiñones] was
directly involved or over which he had influence." Id. at 8.
Policymaking is the key function in requiring that the employee be
required to belong to the political party in power. See Elrod, 427
U.S. at 367 (holding that under the First Amendment "patronage
dismissals" must be restricted to "policymaking positions").
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As stated by the majority at the outset of its opinion:
"Our decisions . . . ask[] whether a position's functions are those
of 'a policymaker, a privy to confidential information, a
communicator, or some other office holder whose function is such that
party affiliation is an equally appropriate requirement." Slip op.
at 5 (quoting Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242
(1st Cir. 1986) (en banc)). López-Quiñones's job functions do not
fall into any of those categories. He was essentially a foreman over
a group of janitors and similar employees; membership in a particular
political party was not a requirement of his job. It is truly
difficult to believe that this was not known or easily discoverable
by the appellants after applying our established jurisprudence in
this area. After professing to apply our clear and established
precedent regarding patronage dismissals, the majority makes an
about-face and inexplicably relies on López-Quiñones's job title
rather than on his responsibilities or functions. See id. at 11.
Far from clarifying the law, the majority muddles it and, in the
process, gives a free ride to government officials who are not
entitled to or deserving of such exceptional treatment.
I dissent to the granting of qualified immunity to these
officials.
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