Rosado v. Zayas

813 F.2d 1263

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1987
• Docket: Nos. 86-1210, 86-1425
• Status: Published

Opinions

COFFIN, Circuit Judge.

We consider in this opinion two political discharge cases, briefed and argued separately before the same panel, arising out of the November 1984 gubernatorial election in Puerto Rico. Plaintiffs-appellees allege that they were demoted for political reasons in violation of the first and fourteenth amendments when the new administration assumed power in January 1985. Plaintiffs seek both damages and injunctive relief reinstating them to their old jobs. In these interlocutory appeals, we consider only whether the district court, 629 F.Supp. 911, erred in denying defendants-appellants’ motions for summary judgment on the ground of qualified immunity.¹

Rather than reiterate the legal principles fully discussed in the opinion issued today in another series of Puerto Rican political discharge cases, see Mendez-Palou v. Rohena Betancourt, 813 F.2d 1255 (1st Cir.1987) we simply adopt the analysis set forth in sections II and III of that opinion.² We thus discuss here only plaintiffs’ particular positions and whether it was clearly established that plaintiffs were protected against dismissal from those jobs on the basis of political affiliation. If plaintiffs did not have clearly established rights to be free from patronage dismissals, then defendants are entitled to immunity from suits for damages, and the district court orders denying summary judgment on that ground must be reversed.

1. Alicea Rosado: Regional Director, Department of Social Services.

Plaintiff Israel Alicea Rosado, appellee in No. 86-1210, was dismissed from the position of Regional Director for the Caguas Region of the Department of Social Services (DSS), a trust or confidential position under the Puerto Rico Public Service Personnel Act, P.R.Laws Ann. tit. 3, § 1350. With regard to the nature of the position, plaintiff’s second amended complaint states only that “political affiliation was neither a de jure nor a de facto job requirement for the effective performance of plaintiff’s occupied position in public service.” Both parties agree, however, that the duties of a DSS Regional Director are accurately described in a Classification Questionnaire that is part of the record on appeal, and we therefore rely on that description for our analysis of plaintiff’s position. See Bonitz v. Fair, 804 F.2d 164, 168 n. 4 (1st Cir.1986).

The Classification Questionnaire leaves no doubt that it was not clearly established at the time of plaintiff’s dismissal that his job was one for which political affiliation was an improper criterion. Indeed, even if our decision were on the merits today, defendant probably would prevail with her claim that political affiliation is an appropriate requirement for the position of DSS Regional Director. According to the Classification Questionnaire, the Regional Director has a significant impact on the nature of social services programs implemented in his region. Among the Regional Director’s job duties are several indicating substantial policy-making responsibility, including:

—plans and executes coordination and supervision program adjusted to the special needs of the local region in order to achieve the Agency objectives;

—interprets the state services plan for the local offices, including discussion of the services required and the goals and achievements the Department expects in the rendering of those services;

—participates in planning, preparation and evaluation of the organizational patterns, policies, rules and reference material;

—discusses with supervisors and subordinates areas of special needs and gaps in the programs;

—promotes and establishes changes and reinforces the existing conditions to improve services and programs.

In addition, the Regional Director is responsible for evaluating the Department’s performance at the local level, and reporting his conclusions to the central office, for representing the department at meetings related to the department’s programs, and for establishing and maintaining positive relations with local civic groups and others. In short, as the Classification Questionnaire states, the Regional Director is “the representative of the Social Services Secretary at the regional level.” Moreover, unlike the non-partisan functions of the plaintiffs in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), who were assistant public defenders, Alicea Rosado’s tasks involved the politically sensitive issue of the provision of social services. In light of the significant policymaking and spokesperson functions of the Regional Director position, and the relationship of those functions to partisan political interests, we think it beyond doubt that it was not clearly established that plaintiff Alicea Rosado was protected against a politically motivated demotion.

2. Morales Burgos: Director of Bureau of Statistics, Economic and Social Planning Program of Planning Board.

Plaintiff Gaddiel Morales Burgos, one of the appellees in No. 86-1425, was dismissed from his position as Director of the Bureau of Statistics for the Economic and Social Planning Program of the Planning Board (Statistics Director), a position classified as trust or confidential by the Puerto Rico Public Service Personnel Act. P.R.Laws Ann. tit. 3, § 1350. In his complaint, plaintiff alleges only that “employees of the Planning Board of Puerto Rico duties or functions were neither normative nor policy making ones ... [and do not] participate in the formulation of the public policy of the Planning Board of Puerto Rico.” Again, however, the record contains an undisputed document detailing the responsibilities of plaintiff’s position, and we rely upon this Job Description to consider whether defendant Patria Custodio is entitled to qualified immunity for plaintiff’s demotion.

Plaintiff’s work — involving statistics— might at first glance seem devoid of partisan political concerns. But the Statistics Director appears to have a significant role in helping to make economic and social policy for the Commonwealth. The Statistics Director studies and analyzes complex economic and social planning problems and prepares reports with alternatives and recommendations. He also advises the Director of the Program on various matters, including the development of the Puerto Rican economy, and counsels the Director on presentations to be made before legislative and executive bodies. The Statistics Director also appears as spokesperson for the Planning Board in public and administrative hearings, and in committees, forums and other activities that concern the analysis of economic and social statistics. Although the tools of the Statistics Director’s job are numbers, the substance of his work involves analysis and planning in the politically charged areas of economic and social development. This work, combined with his representative functions, convinces us that it was not clearly established that the Statistics Director was entitled to protection from political discharge.

3. Garcia: Director of Bureau for Consultation on Land Use, Physical Planning Program of Planning Board.

Plaintiff Sigfrido Garcia, the other appellee in No. 86-1425, was dismissed from his position as Director of the Bureau for Consultation on Land Use for the Physical Planning Program of the Planning Board (Land Use Director), a trust or confidential position under the Puerto Rico Public Service Personnel Act. P.R.Laws Ann. tit. 3, § 1350. We once again rely upon an uncontested Job Description to determine whether it was clearly established that the Land Use Director was protected from demotion based on political affiliation.

The Land Use Director has substantial responsibility for establishing and implementing policy regarding the use of public and private land in Puerto Rico, an issue we consider to implicate partisan political concerns. We list several of his functions:

—Coordinates, among government agencies at the executive level, the processing of substantial projects that depart from usual procedures;

—Takes final action on private and public projects pursuant to Planning Board instructions after evaluating the projects and discussing them with technical personnel;

—Plans and supervises land use consultations to assure compliance with the President and Program Director’s guidelines;

—Attends meetings of the Board and makes recommendations regarding consultations on the use and development of land;

—Prepares and writes, with technical personnel, norms and amendments to the planning rules;

—Safeguards the smooth operation of the Subprogram to ensure that the Board’s policies are carried out through its regulations, guidelines, norms and procedures.

The Land Use Director also has communicative and spokesperson functions, including: revising and correcting reports and decision letters issued by the Board on land development projects; writing reports for the signature of the President and Director of the Program concerning land use and development; representing the President and Director of the Program before legislative commissions; testifying in court cases involving the Board. This broad range of duties in the area of land use and development leads to the conclusion that it was not clearly established, at the time of plaintiff’s dismissal, that the Land Use Director was protected from political discharge.

For the foregoing reasons, the orders of the district courts are vacated and the cases are remanded with instructions to enter summary judgment for defendants on the damage claims on the basis of qualified immunity.

1 . Plaintiffs Gaddiel Morales Burgos and Sigfrido Garcia also allege in their complaint that defendants violated their right to procedural due process. We do not consider this aspect of the case, however, because the issue was not discussed on appeal.

2 . We disagree with the dissent’s assertion that we have departed from the approach to qualified immunity previously adopted in this Circuit. In Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), the right at issue was one applicable to all persons, and the qualified immunity question therefore simply was whether it was clearly established that an individual had a right to be free from an abusive strip search like the one alleged by the plaintiffs in that case. In these cases, however, the right asserted by plaintiffs is not universally protected; an individual employed by the government is protected against a politically motivated discharge only if "party affiliation is [not] an appropriate requirement for the effective performance” of his or her job. Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Thus, in asking the qualified immunity question, we must recognize the individual nature of the right allegedly violated and ask whether it was clearly established that someone in the particular position before us was entitled to protection from discharge. See Bonitz, 804 F.2d 164, 168 n. 4. Any other approach would make the doctrine of qualified immunity meaningless in this area of law. If the question were only, in general, whether there was a clearly established protection against political discharge, the answer always would be yes, and no defendant would be granted immunity. Even the governor would be denied qualified immunity for discharging top agency heads.