Quintero de Quintero v. Roque

• Court: Court of Appeals for the First Circuit
• Decided: September 10, 1992
• Docket: 92-1227
• Status: Published

Opinion

USCA1 Opinion

September 10, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

          No. 92-1227

                            DINHORA QUINTERO de QUINTERO,

                                Plaintiff, Appellant,

                                          v.

                             AWILDA APONTE-ROQUE, ET AL.,

                                Defendants, Appellees.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                ___________________

                              _________________________

                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
                                               ______________

                              _________________________

               Luis F. Abreu Elias on brief for appellant.
               ___________________
               Anabelle Rodriguez, Solicitor General, and Vannessa Ramirez,
               __________________                         ________________
          Assistant Solicitor General, Department  of Justice, on brief for
          appellees.

                              _________________________

_________________________ 

SELYA,  Circuit Judge.  This is an appeal from an order
                    SELYA,  Circuit Judge.
                            _____________

          of  the United States District  Court for the  District of Puerto

          Rico  granting  summary  judgment  in the  defendants'  favor  on

          qualified immunity grounds.   Because the plaintiff has failed to

          show   that  the   defendants'   actions  violated   any  clearly

          established  right assured by federal constitutional or statutory

          law, we affirm.

          I. BACKGROUND
          I. BACKGROUND

                    Plaintiff-appellant   Dinhora   Quintero  de   Quintero

          (Quintero), a citizen of Colombia, was hired on September 2, 1986

          by the Department  of Public Education (DPE)  of the Commonwealth

          of Puerto Rico  as a speech therapist.   Ten days later, Quintero

          was unceremoniously cashiered.  Her superiors justified       the

          firing by reference to  a local statute making United  States (or

          Puerto Rico) citizenship an indispensable requirement for teacher

          qualification in the Commonwealth's public schools.1

                    In May of 1987,  appellant sued.  Invoking 42  U.S.C.  

          1983 (1988), she alleged discrimination  on the basis of national

          origin in  violation of the federal Constitution.   Her complaint

          named  as defendants  three ranking  DPE officials.   Both  sides

          moved  for summary judgment.  The district court issued a Pullman
                                                                    _______

          stay in early 1989, see Railroad Comm'n  v. Pullman Co., 312 U.S.
                              ___ _______________     ___________
                              
          ____________________

               1The statute in question  provides that all "[c]andidates to
          obtain a teacher's certificate" shall "be . . . citizen[s] of the
          United States of America or of Puerto Rico."  P.R. Laws Ann. tit.
          18,    264(1) (1989).   It  is undisputed  that the  position for
          which  Quintero  was  hired requires  certification.    Moreover,
          Quintero does  not contend  that the position  differs materially
          from other teaching positions in the public schools.

                                          2

496 (1941),  because an arguably related case  was pending before

          the Puerto Rico Supreme Court.  That case was decided on June 30,

          1989.  See  Paz Lisk v.  Aponte Roque, 89  JTS 69 (1989).   After
                 ___  ________     ____________

          mulling  the  matter for  a  considerable  period  of  time,  the

          district  court   entered  summary  judgment  in   favor  of  the

          defendants.  This appeal followed.

          II.  THE SUMMARY JUDGMENT STANDARD
          II.  THE SUMMARY JUDGMENT STANDARD

                    Summary  judgment  is  appropriate  if  "the pleadings,

          depositions, answers to interrogatories,  and admissions on file,

          together  with  the affidavits,  if any,  show  that there  is no

          genuine issue as to  any material fact and that the  moving party

          is entitled to a judgment as a  matter of law."  Fed. R. Civ.  P.

          56(c).   A  party  seeking summary  judgment  bears  the  initial

          responsibility  of suggesting the  absence of a  genuine issue of

          material  fact.   Celotex  Corp. v.  Catrett,  477 U.S.  317, 323
                            ______________     _______

          (1986); Garside  v. Osco Drug,  Inc., 895  F.2d 46, 48  (1st Cir.
                  _______     ________________

          1990).   The  opposing party  "must  then document  some  factual

          disagreement sufficient to deflect brevis disposition."   Mesnick
                                             ______                 _______

          v. General  Elec. Co., 950 F.2d  816, 822 (1st Cir.  1991), cert.
             __________________                                       _____

          denied,  112 S.  Ct. 2965  (1992).   When, as  in this  case, the
          ______

          material  facts are  undisputed,  the question  on  a motion  for

          summary judgment becomes  one of  law.  Appellate  review of  the

          district court's ensuing decision is plenary.   See id.; Garside,
                                                          ___ ___  _______

          895 F.2d at 48.

                    In appraising summary judgments,  we are not limited to

          the  district court's reasoning.   Instead, the  court of appeals

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may "affirm the  entry of summary  judgment on any  independently

          sufficient ground made manifest by the record."  United States v.
                                                           _____________

          One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).
          ___________________________

          III.  QUALIFIED IMMUNITY
          III.  QUALIFIED IMMUNITY

                    Government officials exercising discretionary authority

          are  entitled to  qualified immunity  in respect to  claims under

          section 1983 "insofar as  their conduct does not  violate clearly

          established  statutory  or  constitutional   rights  of  which  a

          reasonable person would  have known."  Harlow  v. Fitzgerald, 457
                                                 ______     __________

          U.S. 800, 818 (1982).  To be "clearly established," the "contours

          of  the  right  must  be sufficiently  clear  that  a  reasonable

          official would  understand that what  he is  doing violates  that

          right."  Anderson v.  Creighton, 483 U.S. 635, 640 (1987).  Thus,
                   ________     _________

          the  operative inquiry  is  not whether  the defendants  actually

          abridged the  plaintiff's constitutional rights.  The fact that a

          violation  occurred  is  not  enough  to  pierce  the  shield  of

          qualified immunity  "unless it is further  demonstrated that [the

          defendants']  conduct  was   unreasonable  under  the  applicable

          standard."   Davis v. Scherer,  468 U.S. 183,  190 (1984); accord
                       _____    _______                              ______

          Amsden v. Moran, 904 F.2d 748, 751 (1st Cir. 1990), cert. denied,
          ______    _____                                     _____ ______

          111 S. Ct. 713 (1991).  

                    In  essence, then,  the defense  of qualified  immunity

          offers  sanctuary not only  to government officials  who act with

          impeccable propriety, but  also to  those who err  but could  not

          reasonably  have  understood  that  their  actions   infracted  a

          prospective  plaintiff's federally  assured  rights.   See, e.g.,
                                                                 ___  ____

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Amsden, 904 F.2d at 752; Brennan v. Hendrigan, 888 F.2d 189,  192
          ______                   _______    _________

          (1st Cir.  1989); see also  Collins v. Marina-Martinez,  894 F.2d
                            ___ ____  _______    _______________

          474,  478  (1st  Cir. 1990)  (noting  that  "a  plaintiff who  is

          entitled  to prevail on the merits is not necessarily entitled to

          prevail on the issue of qualified immunity").   Definitively, the

          touchstone of an inquiry  into qualified immunity is whether  the

          state actor's behavior was objectively reasonable, as a matter of

          federal law,  at  the  time  and  under  the  circumstances  then

          obtaining.  See Amsden, 904 F.2d at 751.
                      ___ ______

                    A court embarking on an inquiry into qualified immunity

          must  invariably  determine  whether  some  right emanating  from

          federal constitutional or statutory law was "clearly established"

          at the  time of  the alleged violation.   See id.  at 752.   This
                                                    ___ ___

          examination sometimes calls into  question whether the  plaintiff

          has  asserted a  violation of  a right  at all.   See  Siegert v.
                                                  ______    ___  _______

          Gilley, 111 S.  Ct. 1789,  1793 (1991); Morales  v. Ramirez,  906
          ______                                  _______     _______

          F.2d  784, 787  (1st  Cir. 1990).    When a  defendant moves  for

          summary  judgment on the basis  of qualified immunity,  it is the

          plaintiff's burden to demonstrate the infringement of a federally

          assured right.  See Castro-Aponte v. Ligia-Rubero, 953 F.2d 1429,
                          ___ _____________    ____________

          1430  (1st  Cir. 1992).    If  she fails  to  do  so, the  movant

          prevails.  Id. at 1431.
                     ___

          IV.  ANALYSIS OF THE EQUAL PROTECTION CLAIM
          IV.  ANALYSIS OF THE EQUAL PROTECTION CLAIM

                    In  the  case  at   hand,  appellant  claims  that,  by

          terminating her employment solely  on the basis of  alienage, the

          defendants violated a clearly established right which should have

5

been  apparent to  reasonable  school officials  in September  of

          1986.  She points to  the federal Constitution's Equal Protection

          Clause  as the principal source  of the claimed  right.  Whatever

          one may  think of  the local  statute  in question,  which is  no

          longer  in  force,  we  believe  appellant's  view of  the  Equal

          Protection Clause  has been largely discredited  by Supreme Court

          case law that we are bound to respect.

                                          A.
                                          A.
                                          __

                    Although  it has  long been  held that  resident aliens

          fall  within  the purview  of  the Equal  Protection  Clause, see
                                                                        ___

          Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Examining Bd. of Eng'rs
          _______    _______                        _______________________

          v.  Flores  de  Otero,  426  U.S.  572,  602  (1976);  Graham  v.
              _________________                                  ______

          Richardson,  403 U.S. 365, 371  (1971); Truax v.  Raich, 239 U.S.
          __________                              _____     _____

          33, 39  (1915); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), the
                          _______    _______

          rule is  not without its  recognized exceptions.   A State    and

          Puerto  Rico,  for purposes  of the  exception discussed  in this

          opinion,  is to be  treated at least  as generously as  a State  

          can,  "in an  appropriately defined  class of  positions, require

          citizenship as a qualification for office" without departing from

          the constitutional  restraints of  the  Equal Protection  Clause.

          Sugarman  v. Dougall,  413  U.S. 634,  647  (1973).   States  are
          ________     _______

          permitted  to define these classes  so as "to  preserve the basic

          conception  of a political  community."   Dunn v.  Blumstein, 405
                                                    ____     _________

          U.S.  330, 344  (1972).   Exempt classes may,  therefore, include

          "persons   holding  state   elective  or   important  nonelective

          executive, legislative, and judicial positions, for officers  who

6

participate directly in the  formulation, execution, or review of

          broad public policy  perform functions  that go to  the heart  of

          representative  government."  Sugarman, 413 U.S. at 647.  The key
                                        ________

          is  whether a plausible nexus  exists between citizenship and the

          demands of a particular  position in the public sector.   Phrased

          another way,  a State may  justify its exclusion of  aliens "by a

          showing of some rational relationship between the interest sought

          to be  protected  and the  limiting  classification."   Foley  v.
                                                                  _____

          Connelie, 435 U.S. 291, 296 (1978).  To find if this governmental
          ________

          function exception applies in a given instance, a reviewing court

          must  ask  whether  the "position  in  question  .  . .  involves

          discretionary  decisionmaking,  or  execution  of  policy,  which

          substantially affects members of  the political community."  Id.;
                                                                       ___

          accord Cabell v. Chavez-Salido, 454 U.S. 432, 440-41 (1982).
          ______ ______    _____________

                                          B.
                                          B.
                                          __

                    In respect to teachers, the case  of Ambach v. Norwick,
                                                         ______    _______

          441  U.S. 68  (1979), provides  luminous  authority.   There, the

          Court examined a New  York law allowing exclusion of  aliens from

          employment  as public  school teachers.   In  determining whether

          teaching  in public  schools constitutes a  governmental function

          within the  sweep  of  the  Sugarman doctrine,  the  Court  first
                                      ________

          acknowledged the  importance of public schools  in our democracy:

          "'Today,  education is  perhaps  the most  important function  of

          state and local governments. . . .  It is the very foundation  of

          good citizenship.'"  Id. at 76 (quoting Brown  v. Board of Educ.,
                               ___                _____     ______________

          347 U.S.  483, 493 (1954)).  The Court then focused on the nature

7

of public education and the degree of responsibility thrust  upon

          teachers in the due performance of their mission.  See id. at 78-
                                                             ___ ___

          80.  Teachers,  Justice Powell  wrote, "play a  critical part  in

          developing  students'  attitude  toward  government  and  [their]

          understanding of  the role of citizens  in our society."   Id. at
                                                                     ___

          78.  He also observed that a teacher possesses wide discretion as

          to  how course material is  communicated to students;  that he or

          she  inevitably serves as a  role model; and  that, "through both

          the  presentation of course materials and the example he [or she]

          sets,  a teacher has an opportunity to influence the attitudes of

          students   toward  government,  the   political  process,  and  a

          citizen's social responsibilities."  Id. at 79.  
                                               ___

                    On this  basis, the court concluded  that public school

          teachers,  as  a class,  come  within  the governmental  function

          exception and, therefore, "the  Constitution requires only that a

          citizenship requirement applicable to  teaching in public schools

          bear  a rational  relationship to  a legitimate  state interest."

          Id. at  80.  The  Court concluded that  the New York  statute was
          ___

          narrowly tailored  to serve its purpose because  it excluded only

          those  aliens who  refused to  obtain United  States citizenship.

          Id. at 80-81.
          ___

                                          C.
                                          C.
                                          __

                    In light  of  Ambach, we  think that,  in September  of
                                  ______

          1986,  it  did  not   violate  any  clearly  established  federal

          constitutional  right for  an education  official to  terminate a

          teacher's employment in conformity  with a statute barring aliens

8

from holding teaching positions.   While it is at  least arguable

          that  the Puerto Rico statute  has a somewhat  broader reach than

          its  New York counterpart, approved in Ambach,2 the Court has not
                                                 ______

          hesitated  to uphold  statutes  that barred  aliens totally  from
                                                              _______

          serving in certain government positions.  See,  e.g., Cabell, 454
                                                    ___   ____  ______

          U.S. at  441-42 (deputy probation  officers); Foley, 435  U.S. at
                                                        _____

          299-300 (state troopers); see also Cervantes  v. Guerra, 651 F.2d
                                    ___ ____ _________     ______

          974,  981-82 (5th  Cir. 1981)  (holding  that a  community action

          agency's bylaws  excluding aliens  from service  on the  board of

          directors  did not deny equal protection); cf. Campos v. FCC, 650
                                                     ___ ______    ___

          F.2d  890,  893-94  (7th  Cir.  1981)  (holding  that  a  statute

          prohibiting the  Federal Communications Commission  from granting

          commercial radio  operators' licenses  to aliens did  not violate

          the Fifth Amendment's Due Process Clause).   Moreover, the Ambach
                                                                     ______

          Court  itself  suggested  that  a  State  may  exclude  from  its

          political  functions "all persons who have not become part of the
                                ___

          process  of self-government."   Ambach, 441 U.S.  at 74 (emphasis
                                          ______

          supplied).   We  conclude,  therefore, that  the defendants  were

          entitled to qualified immunity as a matter of law.

          V.  MISCELLANEOUS ARGUMENTS
          V.  MISCELLANEOUS ARGUMENTS

                    We  pause briefly  to  address  two  other  contentions

          advanced by the  appellant.  First, Quintero asseverates that her

          discharge  was  actionable  under  42 U.S.C.     1983  because it

____________________

               2Whereas aliens not yet eligible for citizenship were exempt
          from the New York statute considered by the Ambach Court, see 441
                                                      ______        ___
          U.S. at  70,  Puerto Rico's  statute  prohibits all  aliens  from
                                                          ___
          obtaining certification.  See P.R. Laws Ann. tit. 18,   264(1).
                                    ___

                                          9

transgressed the Puerto Rico Constitution and, thus, transgressed

          federal  law.   We disagree.   The  notion that  the  Puerto Rico

          Constitution should be considered a federal law for  this purpose

          flies  in the teeth of this court's earlier opinions.  See, e.g.,
                                                                 ___  ____

          United  States v. Quinones, 758  F.2d 40, 42-43  (1st Cir. 1985).
          ______________    ________

          By the same  token, the  fact that the  Puerto Rico  Constitution

          itself prohibits discrimination on the basis of alienage does not

          assist  appellant.  A federal court may not order state officials

          to conform their behavior  to state law.  Pennhurst  State School
                                                    _______________________

          and Hospital  v. Halderman,  465 U.S.  89, 106  (1984).   To  the
          ____________     _________

          extent  that appellant seeks relief based on Puerto Rico law, her

          remedy, if any, lies in the courts of the Commonwealth. 

                    Appellant's   last   argument  questions   whether  the

          district  court erred in  abstaining under Pullman.   That issue,
                                                     _______

          however, is  moot.  Whether or  not error inhered    a subject on

          which we take no view   there is no effective relief  that we now

          can provide.  Courts are without jurisdiction to address academic

          questions.3   See In re  Stadium Management Corp.,  895 F.2d 845,
                        ___ _______________________________

          848  (1st Cir.  1990) (dismissing appeals  as moot  because court
                              
          ____________________

               3We note in  passing that the  district court's decision  to
          abstain was quite possibly an appealable event, see,  e.g., Moses
                                                          ___   ____  _____
          H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8-13
          ______________________    _____________________
          (1983) (concluding that, on  particular facts, a district court's
          Pullman  stay order  was  appealable); Idlewild  Liquor Corp.  v.
          _______                                ______________________
          Epstein,  370 U.S.  713, 715  n.2 (1962)  (per curiam)  (order of
          _______
          district   court   staying  proceedings,   premised   on  Pullman
                                                                    _______
          abstention, held to  be immediately  appealable); Bridge  Constr.
                                                            _______________
          Corp.  v. City  of  Berlin, 705  F.2d 582,  583  (1st Cir.  1983)
          _____     ________________
          (discussing  the appealability  issue in  the context  of Pullman
                                                                    _______
          abstention), yet appellant eschewed  any attempt to effectuate an
          immediate appeal.   Her effort  to raise the  issue at this  late
          date is, therefore, especially unbefitting.

                                          10

could provide no meaningful relief).

          VI.  CONCLUSION
          VI.  CONCLUSION

                    We need go no further.  Although the plaintiff's plight

          may  evoke a certain amount  of sympathy, the  undisputed fact is

          that 

her  dismissal  implicated no  breach  of  a clearly  established

          federal constitutional or statutory right.

The judgment below is summarily affirmed.  See 1st Cir.
                    ________________________________________   ____________

          R. 27.1.  Costs to appellees.
          _______   __________________

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