Torres Maldonado v. Ceden-Maldonado ( 1994 )

USCA1 Opinion

          October 20, 1994      [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________


          No. 94-1529


            


                           WALTER TORRES MALDONADO, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                            JOSE CEDENO MALDONADO, ET AL.,

                               Defendants, Appellants.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

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

                                 ___________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                              and Boudin, Circuit Judge.
                                          _____________

                                 ___________________

               Ortiz Ballester & Pagan on brief for appellants.
               _______________________
               Carlos A. Del Valle Cruz on brief for appellees.
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                      Per Curiam.  Several transitory employees filed the
                      __________

            present     1983 action  claiming  their  contracts were  not

            renewed for  politically discriminatory reasons  in violation

            of  their First  Amendment rights.   Contending that  Orta v.
                                                                  _______

            Padilla  Ayala,  92  JTS  96  (1992),  established  that  the
            ______________

            contracts of transitory employees properly may not be renewed

            even for politically discriminatory reasons without violating

            any law,  defendants moved for summary  judgment on qualified

            immunity  grounds.  The  district court  rejected defendants'

            reading of the Orta decision and,  citing Cheveras Pacheco v.
                           ____                       ___________________

            Rivera Gonzalez,  809 F.2d  125 (1st Cir.  1987), where  this
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            court, in rejecting a  qualified immunity defense,  concluded

            that a transitory employee  was protected within the confines

            of the  Branti-Elrod line of  cases from a  politically based
                    ______ _____

            non-renewal, denied defendants'  motion for summary judgment.

            Defendants have now appealed.  

                      It is important to  note that, unlike the situation

            in Orta, the plaintiffs have not asserted any property rights
               ____

            in  their transitory  positions.   Rather, their  position is

            that even if they have no property interest under Puerto Rico

            law  in continued  employment after  the expiration  of their

            contracts, nevertheless defendants  may not  constitutionally

            refuse to  renew  their transitory  appointments  because  of

            plaintiffs'    political    affiliation   unless    political

            affiliation is  an appropriate job requirement.    Plaintiffs



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            are correct for the reasons we  explained in Cheveras Pacheco
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            v. Rivera Gonzalez, 809 F.2d 125, 127-28 (1st Cir. 1987).  As
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            the  Otra  decision  did  not  expressly  address  any  First
                 ____

            Amendment claim  under the Elrod-Branti line of  cases, we do
                                       _____ ______

            not  agree with defendants' reading of that decision.  In any

            event,  however,  federal  law governs  whether  an  employee

            enjoys First  Amendment protection  from a  politically based

            adverse  employment  action.   See Mariani-Giron  v. Acevedo-
                                           ___ __________________________

            Ruiz, 877 F.2d  1114, 1119  n. 7 (1st  Cir. 1989);  Santiago-
            ____                                                _________

            Negron v. Castro-Davila, 865  F.2d 431, 436 (1st  Cir. 1989);
            _______________________

            De  Abadia v. Izquierdo Mora,  792 F.2d 1187,  1195 (1st Cir.
            ____________________________

            1986).

                      Defendants' attempt to distinguish Cheveras Pacheco
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            on  the length  of  transitory employment--28  months in  the

            present  case;  almost  six  years  in  Cheveras  Pacheco--is
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            meritless.   As we  stated in  Figueroa v. Aponte-Roque,  864
                                           ________________________

            F.2d 947, 951 &  n. 7 (1st Cir. 1989),  "transitory employees

            are   protected   from  politically   motivated  non-renewals

            regardless of the  number of  years they have  served. . .  .

            Although "a long-tenured ``temporary'  employee ``particularly'

            enjoys  the protections  established in  Elrod and  Branti, a
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            one-term   employee  also   is   protected   from   political

            discharge."

                      Appellees have  moved for sanctions  under Fed.  R.

            App.  P. 38.  We agree with  appellees that this appeal is on



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            the  verge  of  frivolous.   Its  outcome  was controlled  by

            settled law  explained in  the district court's  opinion, and

            appellants have  failed to articulate  any reasonable  ground

            for appeal.      We  thus will impose double costs under Fed.

            R. App. P. 38.

                      The  order denying  summary  judgment is  summarily

            affirmed.   Loc.  R.  27.1.   Appellants'  motion  to  strike

            appellees' request for sanctions is denied.  Double costs are

            awarded under Fed. R. App. P. 38.



































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