Santiago-Mateo v. Cordero ( 1997 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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          No. 96-1688



                            VICTOR SANTIAGO-MATEO, ET AL.,



                               Plaintiffs - Appellees,



                                          v.



                              MIGUEL A. CORDERO, ET AL.,



                               Defendants - Appellants.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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               Jorge Rodr guez-Micheo, with  whom Benicio S nchez-La  Costa
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          and Goldman Antonetti & C rdova were on brief for appellants.
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               Carlos A. del Valle-Cruz for appellees.
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                                 ____________________



                                    March 20, 1997

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                    TORRUELLA, Chief Judge.   Eight employees of the Puerto
TORRUELLA, Chief Judge.
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          Rico Electric Power Authority ("PREPA") filed a section 1983 suit



          against  PREPA  and  Miguel  A.  Cordero  ("Cordero"),  Executive



          Director of PREPA.   See 42 U.S.C.   1983.   Plaintiffs-appellees
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          allege  that  they  were  demoted from  their  positions  as area



          engineers and  assistant chief of  supply, in violation  of their



          First Amendment right to freedom of association, because of their



          political affiliation  with the  Popular Democratic  Party (PDP).



          In June  1994, defendants-appellants  filed a motion  for summary



          judgment with respect to  the seven plaintiffs who had  been area



          engineers.  The motion  for summary judgment was premised  on two



          different  theories.   First, it  alleged that  plaintiffs' First



          Amendment claim is without merit because political affiliation is



          an  appropriate requirement  for the  position of  area engineer.



          Second,  it  argued  that  co-defendant Cordero  is  entitled  to



          qualified immunity.  Defendants'  motion for summary judgment was



          denied  by the  district court  on March  29, 1996.   Defendants-



          appellants now  appeal  with respect  to  co-defendant  Cordero's



          entitlement to  summary judgment on  qualified immunity  grounds.



          Finding that we lack jurisdiction, we dismiss the appeal.



                    Public officials alleged to have committed civil rights



          violations  are  entitled  to  raise  the  defense  of  qualified



          immunity.    The  defense  is  not  available,  however,  if  the



          official's  conduct violates  a  federal right  that was  clearly



          established  at  the time  of the  infringement.   See  Harlow v.
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          Fitzgerald,  457 U.S.  800, 818-19 (1982);  Stella v.  Kelley, 63
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          F.3d 71, 73 (1st Cir. 1995).



                    Because the doctrine of qualified  immunity is intended



          to  shield government officials from trial as well as from damage



          awards, the defense may be asserted  in a pretrial motion and, if



          that  motion  is  rejected,  immediate appellate  review  may  be



          available.   See  Siegert v.  Gilley, 500  U.S. 226,  232 (1991);
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          Mitchell v. Forsyth,  472 U.S. 511, 530 (1985);  Guzm n-Rivera v.
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          Rivera-Cruz, 98 F.3d 664, 666-67 (1st Cir. 1996); Stella, 63 F.3d
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          at 73.



                    In  Johnson v.  Jones,  __ U.S.  __,  115 S.  Ct.  2151
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          (1995), the  Supreme Court held  that "a  defendant, entitled  to



          invoke a  qualified-immunity defense,  may not appeal  a district



          court's summary  judgment order insofar as  that order determines



          whether or not the  pretrial record sets forth a  'genuine' issue



          of fact  for trial."    Id. at  2159.   In  Johnson, a  plaintiff
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          brought suit against five police officers, claiming that they had



          used excessive force in arresting him.  The district court denied



          a  motion  for  summary  judgment based  on  qualified  immunity,



          finding that  there were  issues of  material fact  sufficient to



          defeat summary judgment.  The Seventh Circuit held that it lacked



          jurisdiction and dismissed the appeal.  The Supreme Court granted



          certiorari and held that no appellate jurisdiction exists where a



          defendant  appeals a  denial  of summary  judgment  based on  the



          grounds that there exist genuine issues of material fact.  Id.
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                    This court  dealt with  a  similar issue  in Stella  v.
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          Kelly.  In Stella,  former members of the Zoning Board of Appeals
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          for  the Town of Tewksbury, Massachusetts,  alleged that they had



          been removed  from the board as  a result of votes  they had cast



          while  on the board.   Stella, 63  F.3d at 72-73.   The complaint
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          consisted  of two allegations -- first, that their firing was the



          result of their voting patterns and,  second, that this infringed



          a  constitutionally protected free speech right.  Id.  This court
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          noted that under Johnson:
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                      a district court's pretrial  rejection of

                      a  proffered  qualified immunity  defense

                      remains   immediately  appealable   as  a

                      collateral  order to  the extent  that it

                      turns on a pure issue of  law . . . .  On

                      the  other  hand,   a  district   court's

                      pretrial   rejection   of   a   qualified

                      immunity   defense  is   not  immediately

                      appealable to the extent that it turns on

                      either  an  issue  of  fact  or an  issue

                      perceived by the district  court to be an

                      issue of fact.



                                        * * *



                      The bottom  line, then, is simply this: a

                      summary  judgment order  which determines

                      that the  pretrial  record sets  forth  a

                      genuine issue of  fact, as  distinguished

                      from  an  order  that determines  whether

                      certain  given  facts demonstrate,  under

                      clearly established law,  a violation  of

                      some  federally  protected right,  is not

                      reviewable on demand.



          Id. at 74.
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                    The instant  case is controlled by  Johnson and Stella.
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          The district  court's Order  denying the summary  judgment motion



          reads, in part:







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                      Upon  review  of the  parties' documents,

                      this Court finds  that defendants are not

                      entitled to judgment as  a matter of law.

                      Defendants   have   not   been  able   to

                      establish the lack of a  genuine issue of

                      material     fact     regarding     their

                      discriminatory conduct towards plaintiffs

                      .  .  . .    [T]his  Court believes  that

                      defendants'  conduct towards  plaintiffs,

                      if  proven  true,  could   constitute  an

                      actionable claim under   1983.



          Order of the District Court, March 29, 1996.



                    The Order  leaves little doubt that  the district court



          determined that "the pretrial record  set[] forth a genuine issue



          of  fact."   Stella, 63  F.3d at  74.   In  light of  Johnson and
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          Stella, the district  court's finding that there  exist issues of
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          material  fact  is sufficient  for us  to  conclude that  we lack



          appellate jurisdiction.



                    For the foregoing reasons, we dismiss the appeal.
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