Acosta-Orozco v. Rodriguez-De-Rivera ( 1997 )


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    United States Court of Appeals United States Court of Appeals
    For the First Circuit For the First Circuit
    ____________________


    No. 97-1489

    NYLSA ACOSTA-OROZCO, et al.,

    Plaintiffs, Appellants,

    v.

    CARMEN RODRIGUEZ-DE-RIVERA, et al.,

    Defendants, Appellees.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO

    [Hon. Jose A. Fuste, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________

    Cyr, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________
    ____________________

    Manuel Alvarado for appellants. _______________
    Roxanna Badillo-Rodriguez, Assistant Solicitor ___________________________
    General, Commonwealth of Puerto Rico, with whom Carlos Lugo- ____________
    Fiol, Solicitor General of the Commonwealth of Puerto Rico ____
    and Edda Serrano-Blasini, Deputy Solicitor General, were on _____________________
    brief, for appellees.

    ____________________

    December 22, 1997
    ____________________


















    LYNCH, Circuit Judge. This is another in a series LYNCH, Circuit Judge. _____________

    of cases following the assumption of power by the New

    Progressive Party (NPP) in Puerto Rico in elections held in

    November 1992. In these cases, plaintiffs are government

    employees who are members of the losing Popular Democratic

    Party (PDP) who assert that they were terminated or demoted

    from their jobs because of their political affiliation.1

    This court faced an earlier wave of such cases when PDP

    candidates won election in 1984 and NPP members complained

    that their government jobs suffered because of their party

    membership.

    In this case, the PDP-affiliated plaintiffs are six

    long-term government employees who were demoted from their

    civil service positions as Managerial Coordinators in the

    Commonwealth's Department of Social Services, now known as

    the Department of the Family. They say their duties are now

    being performed by NPP members who have been designated as

    aides to the Regional Directors of the agency. The district

    court granted summary judgment for defendants on the theory

    that plaintiffs had not made out a prima facie case and that

    defendants had established they would have taken action

    anyway for non-political reasons, regardless of plaintiffs'

    ____________________

    1. See, e.g., Nieves-Villanueva v. Soto-Rivera, No. 96-1285 _________ _________________ ___________
    (1st Cir. 1997); In re Martinez-Catala, 1997 WL 693558 (1st _____________________
    Cir. 1997); Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (1st _____________ _____________
    Cir. 1997); Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7 (1st ____________ _____________
    Cir. 1996).

    -2- 2













    political affiliation. Because we believe there are material

    facts in dispute, we reverse and remand.

    I. I.

    Our review of the district court's grant of summary

    judgment is de novo. Sears, Roebuck & Co. v. Goldstone & _____________________ ___________

    Sudalter, P.C., 128 F.3d 10, 15 (1st Cir. 1997). We state ______________

    the facts in the light most favorable to the party opposing

    summary judgment. See id. at 12. ___ ___

    Plaintiffs are six career civil service employees

    of the former Department of Social Services of Puerto Rico,

    now known as the Department of the Family, all of whom have

    been working at the Department for over twenty years. All

    plaintiffs belong to the PDP, the party of former Governor

    Rafael Hernandez Colon, who held office for two terms between

    1984 and 1992. In a process that began in late 1987, a new

    supervisory position of "Managerial Coordinator" was created

    within the Department. Between 1988 and 1992, the six

    plaintiffs and several others were promoted to this new

    position.

    The Managerial Coordinator classification was a

    middle level managerial position created to provide

    assistance to the several Regional Directors. The Regional

    Directors, in turn, report to the Secretary, a member of the

    Governor's cabinet. The Managerial Coordinator job was

    established as a career position under Puerto Rico's civil



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    service laws, which require that such an employee be selected

    strictly on merit and can only be removed for cause. See 3 ___

    L.P.R.A. 1301, 1331-1338; Agosto-de-Feliciano v. Aponte- ___________________ _______

    Roque, 889 F.2d 1209, 1213 n.3 (1st Cir. 1989) (en banc). _____

    The Regional Directors, in contrast, were classified as

    "confidential employees," who are involved in the formation

    of public policy and render direct services to the head of

    the department, the Secretary of Social Services. See 3 ___

    L.P.R.A. 1350; Agosto-de-Feliciano, 889 F.2d at 1213 n.3. ___________________

    The Central Office of Personnel Administration (COPA), the

    agency charged with administering Puerto Rico's civil service

    laws, approved the creation of the Managerial Coordinator

    position. In approving the position, the civil service

    agency necessarily concluded that political affiliation was

    not a necessary prerequisite for holding a Managerial

    Coordinator position.

    The Director of COPA described the position

    generally, in a job description written in 1988, as entailing

    "managerial and administrative work of great complexity and

    responsibility in the coordination and evaluation of the

    . . . activities of the Local Offices . . . ." Plaintiffs'

    immediate superiors were the Regional Directors. On paper,

    according to the COPA job description, the official duties of

    a Managerial Coordinator included offering technical advice

    on the agency's work plans, keeping the Regional Directors



    -4- 4













    and the Secretary informed of local office operations,

    investigating and reporting on grievances of employees,

    monitoring local offices' expenses, training local office

    supervisors, analyzing statistical reports, preparing reports

    about evaluation visits to local offices, and other duties.

    In practice, plaintiffs' duties as Managerial Coordinators

    ranged widely, and included coordinating inter-agency

    programs, attending to client complaints, substituting for

    the Regional Director, planning professional and social

    activities, and signing per diem and mileage reimbursement

    checks. Plaintiffs' positions "provid[ed] support functions

    to the Regional Directors, analogous to those of an aide."

    In the 1992 general election, the PDP was defeated

    by the rival NPP, and the present governor, Pedro Rosello,

    came to power. Governor Rosello named defendant Carmen

    Rodriguez-de-Rivera as Secretary of Social Services.

    Rodriguez-de-Rivera, in turn, hired the Regional Directors.

    In the first month of the new administration, the Regional

    Directors began to take away many of the duties and functions

    that the Managerial Coordinators had been performing,

    assigning those duties to other employees who were NPP

    activists and had been designated, officially or

    unofficially, as aides to the Regional Directors.

    Additionally, the Regional Directors took away from the

    Managerial Coordinators several perquisites that had been



    -5- 5













    associated with that position, such as parking, telephones

    and office space. Defendants were aware of plaintiffs' PDP

    political party affiliation, and the aides to whom

    plaintiffs' duties were assigned were all politically active

    supporters of the NPP party, newly in power.

    In February 1993, one Managerial Coordinator wrote

    defendant Rodriguez-de-Rivera, to complain that the new

    Regional Directors had taken away the duties and perquisites

    of her position. Rodriguez-de-Rivera's reaction was to

    launch an investigation of the complainant and the other

    Managerial Coordinators. The stated purpose of the

    investigation was to determine whether the creation of the

    position and the selection of candidates had been proper.

    Plaintiffs contend that the real purpose of the investigation

    was to provide a legal cover for the impending demotions.

    In May 1993, Secretary Rodriguez-de-Rivera

    dispatched Carmen Salivia, an official of the Social Services

    Department, to conduct field interviews with the Managerial

    Coordinators. During the interviews, the Managerial

    Coordinators described the duties of their positions -- now

    being performed by NPP-affiliated aides -- and said they

    reported to the Regional Directors. Salivia completed the

    interviews and delivered her notes to defendant Enrique

    Gonzalez-Polanco, Assistant Secretary in Charge of Personnel,

    or to Mrs. Carmen Haddock, who worked in the office. Salivia



    -6- 6













    drew no conclusions and her investigation was terminated when

    she went on vacation.

    Rodriguez-de-Rivera also hired Francisco Cappas, an

    outside personnel consultant, to review the matter. Although

    Salivia understood that her notes would be used in the Cappas

    investigation, the interview notes were never given to Cappas

    before he completed his reports. Cappas apparently held no

    position within the government.

    In June 1993, Cappas submitted two letter reports

    to Rodriguez-de-Rivera. In the first, he concluded that the

    position of Managerial Coordinator should be declared a legal

    nullity because it had been improperly created and was

    duplicative of the duties of the Regional Directors.

    Specifically, he concluded that the Managerial Coordinators

    were in reality policymaking officials who reported directly

    to the Secretary, not to the Regional Directors, and that the

    position should therefore have been classified as

    "confidential" rather than as a career civil service post.

    Under Puerto Rico law, "confidential employees" are only

    those employees who report directly to the head of the

    agency. See 3 L.P.R.A. 1350 (aides to the heads of ___

    departments, but not aides to regional directors, included in

    list of confidential employees). These conclusions are

    facially contrary to the determination made by COPA, the





    -7- 7













    civil service agency, when it approved the creation of the

    positions.2

    In his second report, Cappas concluded that many of

    the Managerial Coordinators had been improperly promoted,

    even though COPA had approved many of these promotions at the

    time. Cappas recommended that the Managerial Coordinators be

    given a hearing and -- if they could not counter his initial

    assessment -- that they be demoted to their previous

    positions.

    In December 1993, Rodriguez-de-Rivera asked the

    Secretary of Justice of Puerto Rico for an opinion on the

    legality of the Managerial Coordinators' appointments,

    repeating the allegations of the Cappas reports. In May

    1994, the Secretary of Justice declined to give an opinion,

    noting that the legality of the Managerial Coordinators'

    appointments depended on the factual accuracy of those

    allegations, not on any question of law, and referred that



    ____________________

    2. Cappas said that the COPA document describing the
    position had originally stated that the position reported to
    the Secretary, but that this document was altered with liquid
    paper to state that the position reported to the Regional
    Directors. Cappas drew the inference that COPA had conspired
    with the Managerial Coordinators to alter the documents.
    There is no evidence that he considered another plausible
    explanation --that the alteration was a correction of a
    mistake in the original -- and Cappas was unaware of
    plaintiffs' statements to Salivia in the field interviews
    that they had always reported to the Regional Directors. Of
    course, a reasonable jury could credit the plaintiffs'
    testimony and discredit the defendants' forgery theory.

    -8- 8













    issue to COPA, whose special expertise is the administration

    of Puerto Rico's civil service laws.

    Rodriguez-de-Rivera then requested the Director of

    COPA and the Director of the Budget and Management Office

    (BMO) to determine that the position of Managerial

    Coordinator was a nullity, sending a copy of her letters to

    Governor Rosello and his staff. The COPA director responded

    by disputing several of the claims contained in the Cappas

    reports, and by refusing to nullify the position or

    promotions of the Managerial Coordinators.

    In contrast with the civil service agency, the BMO

    director responded by stating that he could find no document

    authorizing budgetary approval for the position, and drew the

    inference that the position was therefore illegally created.3

    In spite of the COPA opinion, on August 9, 1994,

    Rodriguez-de-Rivera issued an administrative order providing

    "[t]hat all positions classified as Managerial Coordinators

    in the Department are null." Plaintiffs were not afforded an

    administrative hearing prior to this declaration, or given an

    opportunity to dispute the allegations contained in the

    Cappas reports, although this had been recommended by Cappas.

    ____________________

    3. There is no evidence that the BMO director considered the
    possibility, also plausible, that the proper document from
    six years earlier simply had not been found. Plaintiffs have
    produced documents that tend to show that the BMO approved
    the Managerial Coordinator position and that there has always
    been budgetary authority for salaries and expenses associated
    with that position.

    -9- 9













    Each of the plaintiffs was thereafter demoted to the

    positions they had previously held within the agency. As a

    result of the nullification order, each of the plaintiffs

    suffered a loss of salary in addition to making permanent and

    official their previous de facto loss of position.

    Plaintiffs say that their significant job functions

    have been assumed by other persons, all NPP members, all in

    the position of aides to the Regional Directors. It is our

    understanding that aides to persons at the level of regional

    directors cannot be classified as "confidential" (or

    political) employees within the Puerto Rico personnel system.

    See 3 L.P.R.A. 1350. ___

    II. II.

    In November 1994, plaintiffs filed suit, alleging

    violations of their First Amendment rights of political

    affiliation under Elrod v. Burns, 427 U.S. 347 (1976), Branti _____ _____ ______

    v. Finkel, 445 U.S. 507 (1980) and Rutan v. Republican Party ______ _____ ________________

    of Ill., 497 U.S. 62 (1990). Plaintiffs also alleged that _______

    they were deprived of a property interest without due process

    of law, and that their demotions violated the constitution

    and statutes of the Commonwealth of Puerto Rico. On January

    27, 1997, the district court granted summary judgment for

    defendants, finding that plaintiffs had not shown a causal

    connection between their demotions and their political

    affiliation. The district court also reasoned that



    -10- 10













    defendants' stated rationale for the demotions --

    departmental efficiency and respect for the personnel laws --

    was sufficient to compel a finding that defendants had a

    defense under Mount Healthy City Sch. Dist. v. Doyle, 429 _______________________________ _____

    U.S. 274 (1977), even if political affiliation had played

    some part in their decision.

    III. III.

    Plaintiffs have produced evidence sufficient to

    support a prima facie case of political party discrimination.

    The First Amendment prohibits the government from demoting an

    employee for patronage purposes unless political party

    affiliation is an appropriate requirement for that position.

    See Rutan, 497 U.S. at 64; Nereida-Gonzalez v. Tirado- ___ _____ ________________ _______

    Delgado, 990 F.2d 701, 705 (1st Cir. 1993). A plaintiff who _______

    was demoted from a job for which a party affiliation

    requirement is inappropriate "may ordinarily forestall

    summary judgment by pointing to evidence in the record which,

    if credited, would permit a rational factfinder to conclude

    that a demotion occurred and that it stemmed from a

    discriminatory animus." Nereida-Gonzalez, 990 F.2d at 706. ________________

    There is no dispute that plaintiffs were demoted;

    the "nullity" decree4 eliminated their supervisory positions

    ____________________

    4. Of course, "a new administration [cannot] use the
    'nullity' of appointments doctrine as a cover of discharges,
    transfers, and discrimination based solely on political
    affiliation." Santiago-Negron v. Castro-Davila, 865 F.2d _______________ _____________
    431, 436 (1st Cir. 1989).

    -11- 11













    altogether and returned them to the jobs they held

    previously, which are of lower rank and salary. As the

    subjects of demotion, "which involve reductions in pay and

    official rank," Agosto-de-Feliciano, 889 F.2d at 1218 n.8, ___________________

    plaintiffs plainly need not establish that their new "work

    situation [is] unreasonably inferior to the norm for the

    position" such that "the new work conditions would place

    substantial pressure on even one of thick skin to conform to

    the prevailing political view." Id. at 1218.5 ___

    ____________________

    5. The "unreasonably inferior" doctrine of Agosto-de- __________
    Feliciano was expressly limited to complaints of _________
    discrimination short of actual demotion. See id. at 1218 _______
    n.8. Thus we need not consider whether that doctrine
    survives the Supreme Court's extension of First Amendment
    protections against patronage dismissals to "promotion,
    transfer, recall, and hiring decisions." Rutan, 497 U.S. at _____
    79. "It is an interesting question whether some vestige of
    [the 'unreasonably inferior' rule] survives Rutan, thereby _____
    providing a sort of . . . intermediate First Amendment haven
    for employees wounded by slings and arrows less damaging than
    those [official actions] described by the Rutan court." _____
    Nereida-Gonzalez, 990 F.2d at 705. That question must be ________________
    answered another day.
    The Rutan Court suggested in dicta that any adverse _____
    action against a public employee, no matter how minor,
    violates the First Amendment if it is in retaliation for an
    employee's exercise of First Amendment rights. See Rutan, ___ _____
    497 U.S. at 76 n.8 ("The First Amendment . . . protects state
    employees . . . from even an act of retaliation as trivial as
    failing to hold a birthday party . . . when intended to
    punish [them] for exercising [their] free speech rights."
    (internal quotation marks and citation omitted)). We do not
    regard such colorful rhetoric as necessarily foreclosing
    something like the "unreasonably inferior" rule for personnel
    actions short of demotions or transfers. The Rutan Court was _____
    concerned with "deprivations less harsh than dismissal that
    nevertheless press state employees and applicants to conform
    their beliefs and associations to some state-selected
    orthodoxy," id. at 75, a formulation similar to Agosto-de- ___ __________
    Feliciano's standard that "the new work conditions would _________

    -12- 12













    Viewed in the light most favorable to the

    plaintiffs, the summary judgment record amply demonstrates

    that a rational factfinder could conclude that the demotions

    stemmed from a discriminatory animus. In this case, it was

    uncontested for summary judgment purposes that the plaintiffs

    were all members of the adverse party, that their superiors

    knew this, and that their duties were given to active

    supporters of the party in power. Of course, the Supreme

    Court has cautioned that the mere fact that an adverse action

    was taken after an employee exercises First Amendment rights

    is not enough by itself to establish a prima facie case. See ___

    Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342, 2352 _________________________ ______

    (1996). "Merely juxtaposing a protected characteristic --

    someone else's politics -- with the fact plaintiff was

    treated unfairly is not enough to state a constitutional

    claim." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, _______________ __________________

    58 (1st Cir. 1990) (citation omitted).

    Nevertheless, a plaintiff need not produce direct

    evidence of discriminatory treatment (a so-called "smoking

    gun") to establish a prima facie case of politically

    discriminatory demotion. We have reversed entry of summary

    judgment in favor of defendants in cases where plaintiffs

    ____________________

    place substantial pressure on even one of thick skin to
    conform to the prevailing political view." Agosto-de- ______________
    Feliciano, 889 F.2d at 1218. We leave the resolution of any _________
    conflict in the standard for such adverse personnel actions
    to some future case.

    -13- 13













    have produced sufficient evidence of a discriminatory animus

    through circumstantial evidence. See, e.g., Rivera-Ruiz v. _________ ___________

    Gonzalez-Rivera, 983 F.2d 332, 335 (1st Cir. 1993); _______________

    Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 39-40 (1st _______________ ______________

    Cir. 1993); Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43 _______________ ____________

    (1st Cir. 1992). In Anthony v. Sundlun, 952 F.2d 603 (1st _______ _______

    Cir. 1991), this court noted:

    [T]he appellants' argument seems to be
    that political favoritism must be proved
    by direct evidence. We disagree.
    Victims of heavy-handed uses of the
    spoils system are not limited to redress
    in only those (relatively rare) instances
    in which a "smoking gun" can be produced.
    To the exact contrary, we have held, time
    and again, that circumstantial evidence
    alone can support a finding of political
    discrimination.

    Id. at 605 (citing cases). ___

    In this case, plaintiffs presented much more than

    the mere fact that they were demoted by supervisors of a

    different party. First, the reason given for the supposed

    nullity of the Managerial Coordinators' appointments was that

    their positions were improperly classified as civil service

    rather than "confidential" positions. This suggests that

    defendants believed it was appropriate to take political

    party affiliation into account in deciding to eliminate the

    Managerial Coordinators and transfer their duties to the new

    aides to the Regional Directors. Indeed, that is exactly

    what plaintiffs say happened: their duties were transferred



    -14- 14













    to NPP members. This happened although a jury could readily

    find the position was appropriately classified as a civil

    service position.

    Second, a reasonable jury could find Rodriguez-de-

    Rivera's reaction to the initial complaint from a PDP member

    that her rights under the civil service laws were being

    violated -- to launch an investigation of the complainant --

    to be evidence of political discrimination.

    Third, the conduct of that investigation, including

    the failure to apprise Cappas of the Managerial Coordinators'

    statements that they reported to the Regional Directors,

    could support a reasonable inference that it was not

    conducted fairly, but rather was simply intended to provide a

    legal pretext for a foreordained decision to demote the

    plaintiffs.

    Fourth, the failure to afford plaintiffs a hearing

    to contest the allegations concerning the alleged "nullity"

    of their appointments and promotions could likewise fairly

    imply that the Department was uninterested in the truth of

    the controversy.

    Finally, Rodriguez-de-Rivera's disagreement with

    the advice of COPA, Puerto Rico's civil service commission,

    casts serious doubt on the supposed "nullity" of the

    plaintiffs' appointments or promotions and an inference could





    -15- 15













    be drawn that her decision was in fact motivated by an

    unlawful patronage objective.

    IV. IV.

    The district court did not rest its decision

    entirely on its view of plaintiffs' prima facie case,

    however, but decided that defendants had established that

    they would have taken the same action regardless of

    plaintiffs' political affiliation for what it considered

    "credible policy reasons" of departmental efficiency. This,

    the district court reasoned, established a valid defense

    under Mount Healthy. The district court noted what it ______________

    considered "a logical inconsistency" in plaintiffs' claims of

    political discrimination. Observing that the record was

    unclear whether every Managerial Coordinator was a member of

    the PDP, the district court reasoned that political diversity

    among the Managerial Coordinators undercut plaintiffs' claims

    of political discrimination.6 The district court added that,

    ____________________

    6. Of course, political diversity among the Managerial
    Coordinators would not doom plaintiffs' claim. Defendants
    cannot prevail simply by showing that a desire to reward
    their political supporters, rather than a desire to punish
    their political opponents, underlay their decision. Either
    motive may produce unlawful results. The First Amendment
    condemns "the coercion of belief that necessarily flows from
    the knowledge that one must have a sponsor in the dominant
    party in order to retain one's job." Branti v. Finkel, 445 ______ ______
    U.S. 507, 516 (1980). That coercion is equally unlawful when
    it is directed toward apolitical career employees as when it
    is directed towards a party's political opponents. See ___
    Bennis v. Gamble, 823 F.2d 723, 731-32 (3d Cir. 1987). That ______ ______
    a party chooses to reward its followers with good jobs
    inevitably affects those who are not followers and who see

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    alternatively, if the positions were filled exclusively with

    PDP members, that "would indicate that the position served

    some political purpose, and was thus a 'de confianza,' or

    trust position," as the Cappas report had claimed.

    The burden of persuasion is on the Secretary to

    establish a Mount Healthy defense. "Summary judgment would _____ _______

    have been warranted . . . only if defendants' evidentiary

    proffer compelled the finding that political discrimination

    did not constitute a 'but for' cause for the demotion."

    Jirau-Bernal v. Agrait, 37 F.3d 1, 4 (1st Cir. 1994). Here, ____________ ______

    there are significant disputes of material fact which

    preclude a finding on summary judgment for defendants.

    Defendants' evidence that their decision was

    motivated by a concern for departmental efficiency that would

    have resulted in the same personnel action regardless of

    plaintiffs' political affiliation is both disputed and far

    from conclusive. First, Cappas's finding that the existence

    of the Managerial Coordinators interrupted the free flow of

    the agency hierarchy was based on a view that plaintiffs

    reported to the Secretary, not to her subordinates, the

    Regional Directors. Plaintiffs have successfully put this

    conclusion into doubt through their sworn statements to the

    ____________________

    their upward mobility in the agency thwarted in very concrete
    ways. Here, plaintiffs say their duties were assumed by NPP
    members. Rutan expressly discussed the effect on First _____
    Amendment rights of employees left in such dead-end jobs.
    See Rutan, 497 U.S. at 73. ___ _____

    -17- 17













    contrary. Second, plaintiffs, in their affidavits, say that

    their duties and responsibilities have been transferred to

    new aides to the Regional Directors associated with the NPP.

    If this is true, it calls into question the Department's

    "efficiency" rationale, as the addition of new aides

    undercuts any argument that the positions were eliminated to

    save departmental resources.

    Of course, defendants' contention that plaintiffs'

    demotions were the result of a valid concern for departmental

    efficiency and regularity -- even if political discrimination

    was a "substantial factor" in the decision -- is a viable

    defense at trial. To establish that defense, defendants must

    show that the allegedly bona fide reasons underlying the

    demotions were sufficient by themselves to justify the

    decisions. After Rutan, it is clear that if defendants _____

    thought that plaintiffs' political beliefs alone would

    prevent them from carrying out the department's policy, that

    is not an acceptable reason for the demotions. "A

    government's interest in securing employees who will loyally

    implement its policies can be adequately served by choosing

    or dismissing certain high-level employees on the basis of

    their political views." Rutan, 497 U.S. at 74 (citations _____

    omitted).7 On the other hand, if defendants can establish

    ____________________

    7. The posture of this case makes it inappropriate to
    conduct a full-scale examination of the so-called
    "changeover" or "reorganization" defense established by

    -18- 18













    that plaintiffs opposed departmental policy and that they

    actively attempted in fact to thwart it, that could be

    sufficient to establish a Mount Healthy defense. See Rutan, _____________ ___ _____

    497 U.S. at 74 ("A government's interest in securing

    effective employees can be met by discharging, demoting or

    transferring staff members whose work is deficient.").

    There appears to be lurking in the wings of this

    case, but not on stage, a suggestion by the defendants that

    if the plaintiffs were removed for political reasons, and if

    their duties continued and were assigned to NPP members, that

    those duties nevertheless fall within the Elrod-Branti _____ ______

    exception because those duties are sensitive enough to make a

    political affiliation requirement appropriate. However,

    defendants did not raise the Elrod-Branti exception issue in _____ ______

    their responsive pleading or in their motion for summary

    judgment. The district court mentioned the Elrod-Branti _____ ______

    exception despite the defendants' failure to articulate it,

    but did not resolve the issue. Rather, the district court

    rested its decision on its view that plaintiffs had not

    established a prima facie case. The issue has not been


    ____________________

    Agosto-de-Feliciano, 889 F.2d at 1220-22 in light of Rutan. ___________________ _____
    However, we can say that, after Rutan, a public employer may _____
    not assign tasks to supporters of the party in power because
    it believes, solely on the basis of their party affiliation,
    that such employees will more loyally implement its policies
    -- notwithstanding language in Agosto-de-Feliciano that might ___________________
    be read to support such a decision. See Agosto-de-Feliciano, ___ ___________________
    889 F.2d at 1221.

    -19- 19













    fairly briefed on appeal. This court does not decide issues

    on appeal that have not been properly raised before the

    district court. See McAleer v. Smith, 57 F.3d 109, 115 (1st ___ _______ _____

    Cir. 1995). Although the issue of the Elrod-Branti exception _____ ______

    is somewhat related to the Secretary's contention that the

    positions were illegally created in part because they should

    have been classified as "confidential" positions under Puerto

    Rico law, it is by no means the same argument. See Roldan- ___ _______

    Plumey, 115 F.3d at 64-65 (rejecting government's claim that ______

    political affiliation requirement is permitted despite Puerto

    Rico's classification of position as "confidential.").

    Until the contours of the case are clear, we are

    reluctant, as we have been invited to do, to engage in

    further analysis of the effects of Rutan on the so-called _____

    "changeover" or "reorganization" defense as outlined in

    Agosto-de-Feliciano, 889 F.2d at 1220-22. ___________________

    Finally, we note that, if plaintiffs were

    originally classified appropriately as career civil service

    employees, their claims under the Due Process Clause and

    under the constitution and laws of Puerto Rico survive

    independently of their First Amendment claim. If plaintiffs

    reported to the Regional Directors, as they claim, they were

    apparently classified appropriately as career employees and

    are therefore protected against political discharge under the

    civil service laws of Puerto Rico. See 3 L.P.R.A. 1301, ___



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    1331-1338. The Puerto Rico legislature may, of course,

    establish a civil service system that provides greater

    protection against political discrimination than the First

    Amendment. Plaintiffs may have claims under the Constitution

    of Puerto Rico as well. Cf. Jimenez-Fuentes, 807 F.2d at ___ _______________

    249-250 (Torruella, J., dissenting) (noting that Supreme

    Court of Puerto Rico grants broad protection against

    political discrimination, perhaps broader than this circuit's

    interpretation of the First Amendment); Raffucci-Alvarado, _________________

    816 F.2d at 822-23 (Torruella, J., dissenting) (same).

    Likewise, because of plaintiffs' tenured status

    under Puerto Rico law, their summary demotions could raise a

    claim under the Due Process Clause if their appointments were

    proper. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. ___ ______________________ __________

    532, 542 (1985) (guaranteeing procedural protections to

    public employees with a property interest in continued

    employment under state law); Rivera-Ruiz v. Gonzalez-Rivera, ___________ _______________

    983 F.2d 332, 334 (1st Cir. 1993) (noting that, under Puerto

    Rico law, the existence of a property right in continued

    public sector employment is dependent on the legality of

    plaintiffs' appointments under Puerto Rico's civil service

    laws). That Due Process claim is not dependent on the merits

    of plaintiffs' First Amendment claims; the inquiries are







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    distinct.8 See Nieves-Villanueva v. Soto-Rivera, No. 96- ___ _________________ ___________

    1285, slip op. at 16 (1st Cir. 1997).

    The judgment of the district court is vacated, and _______

    the case is remanded for further proceedings consistent with ________

    this opinion.































    ____________________

    8. We take the case as we find it -- with defendants not
    articulating a defense based on the Elrod-Branti exception -- _____ ______
    and so we also do not delve into a question, not briefed by
    any of the parties, as to whether the Due Process analysis is
    altered in any way if defendants may validly cause a
    reclassification of a position from a civil service position
    to one in which political affiliation is a legitimate
    requirement, and how, under the laws of Puerto Rico, an
    agency may accomplish this.

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