Morales-Narvaez v. Rossello

Opinion

USCA1 Opinion

September 13, 1995    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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          No. 94-1808



                           ARNALDO MORALES-NARVAEZ, ET AL.,

                               Plaintiffs - Appellants,



                                          v.



                              PEDRO J. ROSSELLO, ET AL.,

                               Defendants - Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                                Lynch,* Circuit Judge,
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                         and Boyle,** Senior District Judge.
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                                _____________________



               Manuel Alvarado for appellants.
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               Vannessa Ram rez, Assistant Solicitor General, Department of
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          Justice, with whom Pedro A. Delgado-Hern ndez, Solicitor General,
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          Jos  L. Nieto and Dom nguez & Totti, were on brief for appellees.
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          *  Judge  Lynch replaces  Senior Circuit Judge  Campbell who  has

          recused himself and  has taken  no part in  the consideration  of

          this  case.  Judge Lynch  has participated in  the decision based

          upon the briefs, record, and a recording of the oral argument.



          **  Of the District of Rhode Island, sitting by designation.



BOYLE, Senior  District Judge.  This  case concerns the
                    BOYLE, Senior  District Judge
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          transfers of the appellants from their positions in the Contracts



          Office  within the  Office  of the  Governor  of Puerto  Rico  to



          positions in another  department of the  Office of the  Governor.



          The appellants, claiming that the transfers improperly were based



          on their political associations and violated their procedural due



          process rights, moved for a preliminary injunction returning them



          to  their  original  positions.    The  district  court,  without



          conducting  a hearing,  denied the  motion, concluding  that they



          failed  to show both a likelihood of  success on the merits and a



          threat of irreparable harm,  and that the harm caused  by denying



          the  motion  would  not  outweigh  the  potential  harm   to  the



          government of  Puerto Rico  if the  motion were  denied.  852  F.



          Supp. 104, 115-16 (D. P.R. 1994).  Appellants  argue (1) that the



          district court abused its discretion and legally erred by denying



          the  preliminary  injunction, and  (2)  that  the district  court



          should have conducted  an evidentiary hearing before  determining



          the motion.  We conclude that the sparse record did not support a



          preliminary  injunction.    We  do not  reach  appellants'  other



          argument  because the interests of justice would not be served by



          remanding the case for an evidentiary hearing on  the preliminary



          injunction  when  trial on  the merits  should  be imminent.   We



          affirm  the order of  the district  court, anticipating  that the



          matter will be promptly scheduled for a trial on the merits.


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I.  BACKGROUND
                                    I.  BACKGROUND



                    We   briefly   summarize    the   uncontested    facts.



          Appellants,  Arnaldo  Morales-Narvaez  ("Morales"), Rosa  Ortega-



          Torres ("Ortega"), and Isabel Mart nez-Camacho ("Mart nez"), were



          employed  in the Contracts Office at the Executive Mansion of the



          Governor  of Puerto  Rico.   Morales was  employed as  a contract



          analyst, and  Ortega and  Mart nez were employed  as secretaries.



          The three  appellants were  supporters of the  Popular Democratic



          Party ("PDP").



                    In  November  1992, the  New Progressive  Party ("NPP")



          defeated   the  PDP   in   the  general   election.     The   NPP



          administration,  and the  appellee NPP  administration officials,



          assumed office in January  1993.  In March 1993,  appellants were



          notified  that they  were  being transferred  from the  Contracts



          Office to another division  of the Office of the  Governor, known



          as Programa RED ("RED").



                    Appellants  commenced  this action  under 28  U.S.C.   



          1983, 1985, and  1986.  In support of their  claims under   1983,



          appellants  asserted  they  were  transferred  because  of  their



          association  with PDP,  in violation  of their  rights under  the



          First and Fourteenth Amendments to the Constitution of the United



          States.  They  further asserted that  the circumstances of  their



          transfers  violated   their   procedural  due   process   rights.



          Appellants moved the court  for a preliminary injunction, seeking



          return  to  their  former   positions.    Briefs  and  supporting


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documents  were filed in support  of their motion.   Appellees in



          turn filed opposing memoranda and supporting documents.



                    The district court issued its Opinion and Order  on May



          16, 1994, denying appellants'  motion.  The court's determination



          was based primarily on its  conclusion that appellants failed  to



          show  both a likelihood of success  on the merits of their claims



          and a  threat of irreparable harm.   See 852 F.  Supp. at 110-12,
                                               ___



          114-15.



                                   II.  DISCUSSION
                                   II.  DISCUSSION



          A.  The   1983 Claims
          A.  The   1983 Claims
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                    We   first  address   appellants'  argument   that  the



          preliminary injunction  should issue because  the district  court



          abused its discretion and  legally erred.  We are not prepared to



          say that appellants were entitled to a  preliminary injunction on



          the basis of the record.   In particular, we note that the record



          does  not  support  a  finding  of   irreparable  harm.    First,



          appellants failed to submit job descriptions so that the district



          court could determine  the magnitude  of the harm  they claim  to



          have suffered from  their transfers to new jobs at  the same pay.



          Second, appellants waited  to file their complaint  until July 6,



          1993, more  than three months  after the  transfers took  effect,



          thereby  undercutting the  claimed  irreparable  nature of  their



          injury.   The district  court determined that  plaintiffs' injury



          was  not irreparable,  in part,  because plaintiffs did  not show



          that their new jobs were unreasonably inferior to the old jobs.


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Furthermore, the  district court noted how  the absence



          of evidence on the job  descriptions in particular made difficult



          the determination of the issues relating to the appellants' claim



          for  a preliminary injunction.   It said:   "[t]he absence in the



          record  of  detailed  job  descriptions hampers  our  ability  to



          explore the details of the [appellants'] duties," 852 F. Supp. at



          109; "the question remains  whether the contract analyst position



          as newly  reconstituted is a career  position[;] [a]gain, neither



          party has addressed  this issue," id. at  110 (emphasis omitted);
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          "the proper inquiry is whether the position in question places an



          employee  intrinsically,  not  incidentally,  in  a  confidential



          position[;]  . . .   [the  court  was  not   provided  with]  job



          descriptions detailing [appellants'] duties  and responsibilities



          to  allow [it] to  determine if they  involved partisan political



          concerns so  that political  affiliation would be  an appropriate



          job requirement," id. at 111.
                            __



                    Section 1983  actions  concerning transfers  of  public



          employees  on  the  basis  of their  political  affiliations  are



          especially   dependent   on   detailed   factual   determinations



          concerning claimants' job  responsibilities.  See,  e.g., M ndez-
                                                        ___   ____  _______



          Palou  v. Rohena-Betancourt,  813  F.2d 1255,  1260-62 (1st  Cir.
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          1987); Collazo Rivera  v. Torres Gaztambide, 812 F.2d 258, 261-62
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          (1st Cir. 1987); Jim nez Fuentes  v. Torres Gaztambide, 807  F.2d
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          236,  243-44 (1st Cir. 1986), cert. denied, 481 U.S. 1014 (1987).
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          Appellants assert  that  producing detailed  job descriptions  is



          appellees' burden; appellees assert it is appellants' burden.  We


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need  not  decide  this  issue  in  the  aftermath  of  Rutan  v.
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          Republican  Party of  Illinois,  497 U.S.  62  (1990), given  our
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          disposition of this matter.



                    Appellants'  other argument is  that the district court



          should have  afforded them  an evidentiary hearing  before making



          its determination.  We do not reach this issue because we believe



          that the interests of  justice do not justify remanding  the case



          for an evidentiary  hearing.  The papers supporting  and opposing



          the preliminary  injunction had been  filed by October  22, 1993,



          the district court  issued its order on May 16, 1994, and fifteen



          months have passed  in the  interim.  Because  the judge  ordered



          expedited discovery,  such discovery  should have taken  place by



          now and the matter should be at or near trial on the merits.



                    If a  trial  or other  final disposition  is indeed  in



          prospect, diverting efforts to a new preliminary proceeding could



          disserve the interests of both sides in an expeditious resolution



          and  could  needlessly  waste   judicial  resources.    In  these



          circumstances, we  think that  the district court  may reasonably



          insist that  the parties  proceed  promptly to  trial instead  of



          revisiting the preliminary injunction.



          B.  The    1985 and 1986 Claims
          B.  The    1985 and 1986 Claims
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                    The district court  determined that appellants'  claims



          under  28 U.S.C.     1985 and 1986  were without merit,  and that



          appellants were  therefore unable to show a likelihood of success



          on  the merits as to those  claims.  See 852  F. Supp. at 114-15.
                                               ___



          Appellants do not contest this determination, and it is affirmed.


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III.  CONCLUSION
                                   III.  CONCLUSION



                    The district court's Order and Opinion is affirmed.
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