Roldan-Plumey v. Cerezo-Suarez ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1701
MAGALY ROLDAN-PLUMEY,
Plaintiff - Appellant,
v.
HIRAM E. CEREZO-SUAREZ,
PERSONALLY AND AS COMMISSIONER FOR
MUNICIPAL AFFAIRS, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Carlos A. del Valle-Cruz, with whom Juan Rafael Gonz lez-
Mu oz and Gonz lez Mu oz & Qui onez Tridas were on brief for
appellant.
Sylvia Roger-Stefani, Assistant Solicitor General,
Department of Justice, with whom Carlos Lugo-Fiol, Solicitor
General and Edda Serrano-Blasini, Deputy Solicitor General, were
on brief for appellees.
June 4, 1997
TORRUELLA, Chief Judge. On May 4, 1994, Plaintiff-
TORRUELLA, Chief Judge.
Appellant Magaly Rold n-Plumey ("Rold n") brought this Section
1983 suit against Defendants-Appellees Hiram Cerezo-Su rez
("Cerezo"), Commissioner of Municipal Affairs for Puerto Rico,
and Sandra Valent n ("Valent n"), Director of the Legal Division
of the Office of the Commissioner of Municipal Affairs ("OCMA"),
in their individual and official capacities. The suit alleged
that appellees, in violation of Rold n's First Amendment rights,
dismissed her from her position of Hearing Examiner (also
referred to as Examining Officer) because of her political
beliefs. The district court granted appellees' motion for
summary judgment on the ground that party affiliation is an
appropriate requirement for the effective performance of the
position of Hearing Examiner and, consequently, that appellees
were entitled to dismiss Rold n on those grounds. See Opinion
and Order, March 5, 1996, at 10. Having ruled on the merits, the
district court did not address, inter alia, whether appellees
were entitled to qualified immunity.
In contrast to the lower court, we find that the
inherent duties of Rold n's position do not demonstrate
policymaking attributes sufficient to subject Rold n to discharge
based on her political beliefs and, accordingly, reverse the
entry of summary judgment. Moreover, having found cause to set
aside the judgment on the merits, we address appellees' argument
that they are entitled to qualified immunity and find it wanting.
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BACKGROUND
BACKGROUND
On March 1, 1992, Rold n accepted the position of
Hearing Examiner with the Office of the Commissioner of Municipal
Affairs. The OCMA is the main regulatory agency of Puerto Rico's
municipalities and is charged with uncovering, investigating, and
reporting to municipal mayors any irregularities in the
municipalities' management. P.R. Laws Ann. tit. 21, 4909
(1995). The office is further obligated to provide various forms
of "technical and professional assistance to the municipalities
relating to their organization, administration, functions and
operation." Id. 4902. The Commissioner developed a
confidential and trust employee plan under which employees in the
OCMA were classified in accordance with the Puerto Rico Public
Service Personnel Act, P.R. Laws Ann. tit. 3, 1301 et seq. The
plan, developed by Cerezo's predecessor as Commissioner, Ismael
Pag n-Colberg, designated the position of "examining officer" as
a trust position. According to this document, the OCMA positions
designated as trust or confidence positions were only "[t]hose
positions whose holders intervene or collaborate substantially in
the formulation of public policy, which directly advise or render
direct services to the Commissioner of the Office of the
Commissioner of Municipal Affairs." Def. Exh. IV to Motion to
Summary Judgment.
The classification, or job description, for the
position of "Examining Officer" sets forth the position's duties
as follows:
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DUTIES OF POSITION
Professional and technical work that requires
great knowledge of the principles and the
practice of law and the ability to direct
research procedures leading to an
adjudicative determination.
1. Holds administrative hearings required
by the Autonomous Municipalities Act and
any other necessary one[s] to carry out
the duties assigned to the Commissioner.
Regulates the procedures during the
[performance] of the same.
2. Takes oaths and declarations, issues
summons for the appearance of witnesses
and the filing of reports, documents and
other evidence necessary to solve cases.
3. Evaluates evidence and comes to
conclusions of facts and law.
4. Carries out legal studies for the
solution of cases.
5. Issues reports with his conclusions and
recommendations to the Commissioner.
6. Carries out other assigned related
duties.
Def. Exh. V to Motion for Summary Judgment.
On November 4, 1992, Pedro Rossell ("Rossell "), a
member of the New Progressive Party ("NPP"), was elected
governor. In March 1993, Rossell appointed Cerezo Commissioner
of Municipal Affairs. In April 1993, Cerezo appointed Valent n
to head the Legal Division of the OCMA. On May 6, 1994, Rold n
received a dismissal letter effective that same date.
STANDARD OF REVIEW
STANDARD OF REVIEW
We review the grant of summary judgment de novo,
viewing the facts, and drawing all reasonable inferences, in the
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light most favorable to the non-movant, here Rold n, and
affirming summary judgment only "if no genuine issue of material
fact exists." O'Connor v. Steeves, 994 F.2d 905, 906-07 (1st
Cir. 1993).
DISCUSSION
DISCUSSION
I. Political Discharge Claim
I. Political Discharge Claim
We turn first to the grounds on which the district
court granted summary judgment to Cerezo and Valent n. More than
twenty years ago, a plurality of the Supreme Court held that
governmental employers may not discharge an employee because of
her political affiliation without showing a governmental interest
sufficiently vital to outweigh the employee's First Amendment
right to association. Elrod v. Burns, 427 U.S. 347, 355-56, 362
(1976). The plurality found that the government's interest in
effective implementation of its policies can be achieved "by
limiting patronage dismissals to policymaking positions." Id. at
372. Justice Stewart's concurrence gave the Court a majority for
the proposition that nonpolicymaking, nonconfidential employees
should not be discharged on the basis of their political beliefs.
Id. at 374-75 (Stewart, J., concurring in the judgment).
The Court next attempted to define the contours of the
prohibition on political discharge in Branti v. Finkel, 445 U.S.
507 (1980). Instead of applying Elrod's policymaking inquiry,
the Branti Court relied upon a finding that political affiliation
is not an appropriate requirement for the effective performance
of the position of assistant public defender. Id. at 518-19.
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The Branti Court again, however, imposed the burden on the
governmental body seeking dismissal: "[U]nless the government
can demonstrate 'an overriding interest' 'of vital importance'
requiring that a person's private beliefs conform to those of the
hiring authority, his beliefs cannot be the sole basis for
depriving him of continued public employment." Id. at 515-16(citations omitted). Of fundamental importance is the idea that
"conditioning continued public employment on an employee's having
obtained support from a particular political party violates the
First Amendment because of '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.'" Rutan v.
Republican Party of Illinois, 497 U.S. 62, 70 (1990) (quoting
Branti, 445 U.S. at 516).
More recently, in Rutan v. Republican Party of
Illinois, the Court extended the reach of the Elrod-Branti
doctrine to politically motivated promotions, transfers, and
recalls. Rutan, 497 U.S. at 70. The Court reaffirmed the heavy
burden on government employers to show that the use of "patronage
practices are narrowly tailored to further vital government
interests." Id. at 74. The Court reiterated that
[a] government's interest in securing
effective employees can be met by
discharging, demoting, or transferring staff
members whose work is deficient. 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.
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Id. Unless a position is one that requires policy
implementation, or is confidential in nature (a claim that
appellees here do not make and to which we need not allude
hereafter), a government employer must rely on traditional
discharge criteria.
Based on this case law, this circuit has developed a
two-part test for discerning when discharge based on political
affiliation is permissible. First, we inquire into whether the
discharging agency's functions entail "'decision making on issues
where there is room for political disagreement on goals or their
implementation.'" O'Connor, 994 F.2d at 910 (quoting Jim nez
Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.
1986)). If so, we next determine "whether the particular
responsibilities of the plaintiff's position, within the
department or agency, resemble those of a policymaker, privy to
confidential information, a communicator, or some other office
holder whose function is such that party affiliation is an
equally appropriate requirement for continued tenure." Id.(internal quotation marks omitted); see also Jim nez Fuentes, 807
F.2d at 241-42. In reviewing this second prong, we have looked
to "relative pay, technical competence, power to control others,
authority to speak in the name of policymakers, public
perception, influence on programs, contact with elected
officials, and responsiveness to partisan politics and political
leaders." O'Connor, 994 F.2d at 910.
A. Agency functions
A. Agency functions
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In her opposition to appellees' motion for summary
judgment, Rold n conceded that OCMA is an agency whose functions
require "'decision making on issues where there is room for
political disagreement on goals or their implementation.'" Id.For the purposes of this appeal, therefore, we consider the first
prong satisfied.
B. Whether the position involves policymaking
B. Whether the position involves policymaking
Under the second prong, the question is whether the
responsibilities of the position of Hearing Examiner resemble "a
policymaker, a privy to confidential information, a communicator,
or some other office holder whose function is such that party
affiliation is an equally appropriate requirement." Jim nez
Fuentes, 807 F.2d at 242. We have held time and again that a
court, in making this determination, is to look only to the
duties inherent to the position and is not to consider the actual
functions of either past or present officeholders. See id.; see
also O'Connor, 994 F.2d at 911 ("[T]he analysis must focus upon
the 'powers inherent in a given office, as opposed to the
functions performed by a particular occupant of that office.'");
Cordero v. Jes s-M ndez, 867 F.2d 1, 9 (1st Cir. 1989); Romero
Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir. 1987); De
Abadia v. Izquierdo Mora, 792 F.2d 1187, 1192 (1st Cir. 1986).
We consider the job description to be the best, and sometimes
dispositive, source for determining the position's inherent
functions. See Ortiz Pi ero v. Rivera Arroyo, 84 F.3d 7, 13 (1st
Cir. 1996) (stating that "written, signed job descriptions may
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provide highly probative evidence as to the responsibilities
inherent in a particular government position, and may even prove
dispositive"); Romero Feliciano, 836 F.2d at 3 (recognizing that
"we have considered the OP-16 dispositive in . . . Puerto Rico
political discrimination cases"); M ndez Palou v. Rohena
Betancourt, 813 F.2d 1255, 1260 (1st Cir. 1987) ("Whenever
possible, we will rely upon this document because it contains
precisely the information we need concerning the position's
inherent powers . . . .").
The Hearing Examiner job description details five
specific responsibilities and designates a further responsibility
to "carr[y] out other assigned related duties." The five well-
defined responsibilities make clear that the position of Hearing
Examiner leaves little room for free-ranging actions independent
of their limited scope. The narrow duties require application of
technical and professional skills in evaluating facts and
researching law. They are not broad and open-ended, and do not
leave room for discretionary policymaking or policy
implementation. Nor are they "hazily defined." See Alfaro de
Quevedo v. De Jes s Schuck, 556 F.2d 591, 593 (1st Cir. 1977).
The narrowly circumscribed duties permit the officeholder the
opportunity to identify and investigate irregularities, but do
not convey power or discretion to take any action as a result of
these findings. Indeed, in their brief, appellees recognize that
"plaintiff's position as described in her job description seemed
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to involve technical and professional skills." Appellees' Brief
at 20.
In addition, the limited nature of the position differs
substantially from most of those positions for which we have
previously found political affiliation to be an appropriate
requirement. For instance, in Agosto-de-Feliciano v. Aponte-
Roque, 889 F.2d 1209, 1213 (1st Cir. 1989), we reviewed four
positions to determine the appropriateness of political
affiliation. The job description of the first position listed
twenty-six responsibilities including supervising employees,
representing the regional director at public meetings, and
overseeing the respective office when the director was absent.
Id. The second position under review required the officeholder
to act as a liaison between the Department of Public Education
and private schools, to coordinate a teaching program in the
project school, and to direct a regionwide committee on school
organization. Id. The third position consisted of twenty-three
responsibilities, requiring the officeholder to survey needs,
develop work plans, evaluate curricula and training, manage
vocational education, and supervise student organizations. Id.The position also included a supervisory component. Id.Finally, the job description for the fourth position listed
twenty-one broadly stated duties, including budget
administration, oversight of programs relating to school needs,
transportation, and student services, and evaluation of
personnel. Id. at 1214-15. These high-level positions, with
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their numerous, loosely defined responsibilities, allowed the
officeholders considerable power and discretion in the management
of Puerto Rico's Department of Education. They included
oversight, evaluation, and revision of programs as well as
supervision of personnel. Some allowed the officeholder to act
in place of department heads. The circumscribed list of
responsibilities of the position of Hearing Examiner grants the
officeholder no such broadly defined powers.
In O'Connor v. Steeves, we found that the position of
superintendent, which gave the officeholder responsibility for
the administration of all departments of city government and
required policymaking, acting as a city representative, and
supervising personnel, all duties absent here, was one for which
political affiliation was an appropriate consideration.
O'Connor, 994 F.2d at 911.
In the seminal political discrimination case, Jim nez
Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir. 1986) (en
banc), this court reviewed the claims of plaintiffs who had been
discharged from their positions as Regional Directors of the
Puerto Rico Urban Development and Housing Corporation ("CRUV"),
attached to the Department of Housing of the Commonwealth of
Puerto Rico. Id. at 237-38. Approximately 3,000 of the 3,600
CRUV employees served under the disputed positions. Id. at 243.
The job descriptions consisted of twenty duties, including
directing, planning, and supervising the operational activities
of the entire region, developing and implementing new programs or
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discerning ways to improve existing programs, serving as
spokesperson for the Executive and Associate Directors, and
controlling the region's budget, all duties of a high-level
policymaker. Id. at 244; see also Raffucci Alvarado v. Zayas,
816 F.2d 818, 821-22 (1st Cir. 1987) (finding position of Social
Services Regional Director sufficiently entailed policymaking to
render political affiliation relevant).
The position at issue here is readily distinguishable
from those at issue in Jim nez Fuentes and O'Connor, and is more
akin to the position of Internal Auditor, which we addressed in
Cordero v. Jes s-M ndez, 867 F.2d 1 (1st Cir. 1989). The
position of Internal Auditor did not require the officeholder to
engage in policymaking decisions, but instead required that the
auditor investigate the financial records of a municipality and
make a report to the Mayor and Comptroller. Id. at 18. The
internal auditor had no authority to correct the mistakes he was
charged to investigate. Id.As in Cordero, the position at issue here is that of a
mere "technocrat." Id.; see also De Choudens v. Government Dev.
Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir. 1986). A Hearing
Examiner is charged only with investigating and holding hearings
into possible irregularities in municipal functions, and
reporting them to the Commissioner, in whom authority rests to
take action. Considering these five enumerated duties, we find
that they require technical and professional skills and do not
provide discretion to formulate or implement policy. See
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generally De Choudens, 801 F.2d at 9-10. Accordingly, political
affiliation is not an appropriate requirement for the position.
Moreover, a review of the indicia we have typically
considered material to this determination further suggests that a
Hearing Examiner is not a policymaker. With regard to relative
pay, the salary for Hearing Examiner is the fifth highest of the
13 levels on the OCMA pay scale, not including the Commissioner.
The documents submitted on summary judgment do not indicate the
number of employees filling each level of the scale. Thus, while
the position is ranked fifth, a significant number of actual
employees may be paid more than the Hearing Examiner. Moreover,
the trust classification is fifth-tier, among eleven trust
positions in the OCMA. Although the position is of a quasi-
adjudicative nature, it does not require that an officeholder
possess a law degree. The position carries no supervisory
responsibilities. The duties neither require any public
appearances nor grant authority to speak on the Commissioner's
behalf. Contact with elected officials appears to take place
only in the context of a hearing, and in no other context does a
Hearing Examiner act as a public spokesperson for or
representative of her agency.
Appellees attempt to maneuver around the job
description's inherent duties by pointing to item number 61 on
the job description, claiming that the possibility of being
1 Item number 6 states that the office holder "[c]arries out
other assigned duties."
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assigned related tasks transforms the position into one with
broad powers. The summary judgment record indicates that
appellees presented two exhibits, in addition to the job
description, to support this contention. The first of these,
Exhibit VI, appears to be a listing of correspondence received by
the Office of Legal Affairs containing inquiries regarding
various municipal concerns. These inquiries were assigned to
Rold n for resolution. The last date on which any of the tasks
on this list were assigned to Rold n is September 24, 1992. The
other exhibit, Exhibit VII, suggests that, as of July 28, 1992,
Rold n was assigned by Cerezo's predecessor to monitor the status
of amendments to the Autonomous Municipalities Act. We note that
appellees did not argue to the district court, as they do on
appeal, that the duties set forth in Exhibits VI and VII were
assigned as "other [] related duties" pursuant to item six of the
job description, and thus fall within the scope of the court's
analysis of "inherent duties." Nevertheless, because the
district court took into consideration the documents in Exhibits
VI and VII, we address appellees' contention here.
In reviewing the nature of the tasks assigned to Rold n
by Cerezo's predecessor, it is apparent that they were not
related to the inherent duties of Hearing Examiner. Instead,
these exhibits are of the very type we have consistently held are
not to be considered in the process of determining whether a
position entails policymaking. We look only to the inherent
duties of the position under review and do not consider the
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actual tasks performed by a present or past officeholder. See
O'Connor, 994 F.2d at 911; Jim nez Fuentes, 807 F.2d at 242. The
inherent duties of a Hearing Examiner relate only to
investigating and administering hearings regarding irregularities
and do not encompass providing legal advice, or analyzing,
developing, or advising the Commissioner on proposed or actual
legislation. We certainly cannot allow a catch-all provision
such as that found in Item 6 to convert all assigned tasks into
inherent duties. We conclude that the duties set forth in
Exhibits VI and VII, which were assigned to Rold n during her
tenure as a Hearing Examiner, are not tasks related to her
position and thus cannot be properly characterized as assigned in
accordance with item number 6. They are actual duties performed
by a past officeholder, and not inherent duties.
We recognize that, in past cases, we have granted a
modicum of deference to the Puerto Rico legislature's designation
of a particular position as "trust" or "confidential." See,
e.g., Figueroa-Rodr guez v. L pez-Rivera, 878 F.2d 1478, 1481
(1st Cir. 1989); Juarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st
Cir. 1987); Raffucci Alvarado, 816 F.2d at 822; Jim nez Fuentes,
807 F.2d at 246. We accorded deference because
(a) Puerto Rico's own civil service system
permits a fairly small number of positions
(no more than 25 per agency) to be classified
as confidential (i.e., potentially subject to
politically-based discharge), P.R. Laws Ann.
tit. 3, 1351 (1978 & Supp. 1987); (b) the
personnel law bases the classification of a
confidential position on criteria similar to
those enumerated in Elrod and Branti,
(whether the job involves "formulation of
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public policy," P.R. Laws Ann. tit. 3,
1350, or "direct service to the head or
subhead of the agency which require a high
degree of personal trust," P.R. Personnel
Bylaws: Areas Essential to the Merit
Principle, 5.2 (1976)); and (c) the
legislators and administrators are more
familiar with the issues and subjects that
potentially may affix a particular job at a
particular time with a "political charge."
Figueroa-Rodr guez, 878 F.2d at 1481. Nevertheless, we decline
to grant deference to the designation of Hearing Examiner as a
"confidential" position here, when the plan that designated the
position as confidential took into consideration the five
specific duties discussed above and merely suggested that the
Hearing Examiner "has broad and considerable freedom to exercise
initiative and his own judgment in the performance of his work."
See Def. Exh. IV to Motion for Summary Judgment. We have already
considered the job duties of the position above and found them
insufficient to indicate that the position entails policymaking.
Having "freedom to exercise . . . [one's] judgment in the
performance of [one's] work" does not go beyond our earlier
consideration of the position and does not support appellees'
contention that the position involves the use of broad
discretion. In addition, that the same plan labels drivers and
at least two tiers of secretaries as trust or confidential
employees suggests that these categories are overly broad.
Based on the summary judgment record, we hold that the
position of Hearing Examiner is not one for which party
affiliation is an appropriate requirement.
II. Qualified Immunity
II. Qualified Immunity
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In their request for summary judgment below, appellees
contended, as they do on appeal, that they are entitled to
summary judgment on the basis of qualified immunity. The
doctrine of qualified immunity protects defendants in their
individual capacities from liability for money damages.
"Qualified immunity shields government officials performing
discretionary functions from civil liability for money damages
when their conduct does not violate 'clearly established'
statutory authority or constitutional rights of which a
reasonable person would have known." Nereida-Gonz lez v. Tirado-
Delgado, 990 F.2d 701, 704 (1st Cir. 1993). In the context of
political discrimination charges, "a defendant enjoys 'qualified
immunity' as long as the job in question 'potentially concerned
matters of partisan political interest and involved at least a
modicum of policymaking responsibility, access to confidential
information, or official communication.'" Figueroa-Rodr guez,
878 F.2d at 1480 (quoting M ndez-Palou v. Rohena-Betancourt, 813
F.2d 1255, 1259 (1st Cir. 1987)).
In earlier political discrimination cases, we found
defendants entitled to qualified immunity because their allegedly
unconstitutional actions took place prior to the development of
clearly established law in this area. See, e.g., Nereida-
Gonz lez, 990 F.2d at 704 (granting defendants qualified immunity
because prior to 1989, a period that encompassed defendants'
allegedly unconstitutional demotions and transfers, it was not
clear whether Elrod and Branti applied); Valiente v. Rivera, 966
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F.2d 21, 23 (1st Cir. 1992) (same); N ez-Soto v. Alvarado, 918
F.2d 1029 (1st Cir. 1990) (state of the law in political
discrimination cases was not clearly established in 1985);
Figueroa-Rodr guez, 863 F.2d at 1040 (recognizing that although
Elrod and Branti clearly prohibited discharge of non-policymaking
state employees for partisan reasons, this circuit had yet to
delineate the scope of positions for which political affiliation
was appropriate); De Abadia, 792 F.2d at 1190 (noting that Elrod
and Branti marked a dramatic departure from prior law and further
observing that an "official cannot be expected to predict the
future course of constitutional law" (internal quotation marks
omitted)). This case is different. Appellees discharged Rold n
on May 6, 1994. The contours of the law regarding discharge
based on party affiliation grew much clearer in the late 1980s
and early 1990s. By 1993, this circuit had decided two waves of
political discrimination cases. At the time appellees discharged
Rold n, this circuit's law regarding discharge based on political
discrimination was indeed clearly established.
To be sure, the law may still be blurred around the
edges. But this is not a borderline case. In determining
entitlement to the qualified immunity defense in the political
discrimination context, we look only to the inherent duties of a
position and ask whether the defendant could reasonably believe
the position in question was one that "'potentially concerned
matters of partisan political interest and involved at least a
modicum of policymaking responsibility, access to confidential
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information, or official communication.'" Figueroa-Rodr guez,
878 F.2d at 1480. We have already found that the inherent duties
of the position were limited to discrete, technical
responsibilities that did not involve policymaking or policy
implementation. We do not believe that appellees could
reasonably believe that the five specified duties of the position
in any way provided Rold n with discretion to devise or implement
policy. Assigning her with a duty related to those functions
would not expand her discretion in the position.
As discussed above, the additional tasks assigned to
Rold n, on which appellees rely, were not inherent to the
position nor can they be bootstrapped into the position through
the device of item number 6. That the defendants might have
considered the additional duties assigned to Rold n as part of
the duties inherent in the position of Hearing Examiner appears
unreasonable based on the record at the summary judgment stage.
We note that should defendants muster convincing evidence at
trial to show that the function of a typical Hearing Examiner
includes following the status of legislation and providing legal
assistance directly to the municipalities and that the position
has traditionally been perceived as encompassing these tasks,
they may or may not be entitled to qualified immunity. They are
not, however, entitled to summary judgment on qualified immunity
grounds.
Appellees suggest that one of the cases on which the
district court relied, Alfaro de Quevedo v. De Jes s Schuck, 556
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F.2d 591 (1st Cir. 1977), is analogous to the instant case and
warrants the opposite conclusion. The district court also relied
on another case that may seem to involve a position similar to
that of a Hearing Examiner. See Gonz lez-Gonz lez v. Zayas, 878
F.2d 1478 (1st Cir. 1989) (en banc). Those cases are
distinguishable on two grounds.
First, the positions at issue in those cases involved
considerable discretion to make and implement policy. The
position at issue in Alfaro de Quevedo, the Director of the
Office of Criminal Justice, required, inter alia, the
officeholder to advise "the Secretary of Justice on all pending
legislation affecting crimes and law enforcement," id. at 593,
draw up proposed legislation, prepare an annual budget, supervise
the staff of the Office of Criminal Justice, and prepare a
Proposed Code of Criminal Justice for Puerto Rico. Id. The
position "gave [the officeholder] a broad discretion to carry out
hazily defined purposes and to render advice to the Secretary in
an area that is far from noncontroversial." Id. at 593. The
position at issue in Gonz lez-Gonz lez was that of the Director
of the Board of Appeals of Puerto Rico's Department of Social
Services. See Gonz lez-Gonz lez, 878 F.2d at 1482. The position
duties were, among others, to supervise 31 employees who worked
for the Board, to establish procedures to hold hearings on
appeals, to analyze and make final decisions on all appeals, to
prepare an annual budget, and to recommend rule changes to the
Directors of the various Social Services programs. Id. In
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addition to any adjudicatory tasks, this position entailed broad
administrative, policymaking, and supervisory duties. Id. at
1483. As our analysis indicates, the broad discretion inherent
in these duties is not present in the case before us.
Second, Gonz lez-Gonz lez was dismissed from his post
in 1985 and Alfaro de Quevedo resigned in 1973. When the
defendants in those cases ousted the plaintiffs, the state of the
law with respect to political firings was poorly defined. The
state of the law at the time of the discharge in this case had
developed markedly since the two opinions relied upon below.
Because we must consider whether appellees violated a clearly
established constitutional right of which a reasonable person
would have been aware, at the time the adverse employment action
was taken, the outcome of these two cases is not controlling on
the issue of qualified immunity.
We also recognize that in prior cases, we have granted
qualified immunity partially because a defendant might mistakenly
rely on the position's status as "confidential" or "trust" under
the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit.
3, 1301 et seq. See, e.g., Figueroa-Rodr guez, 878 F.2d at
1481 ("[I]n the context of qualified immunity, the fact that the
Commonwealth government had classified a particular job as a
trust or confidence position, makes it more difficult to say that
a Puerto Rican official should have known that the law 'clearly'
forbids dismissal."); Juarbe-Angueira, 831 F.2d at 14 (same);
Raffucci Alvarado, 816 F.2d at 821-22 (same). Based on our
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discussion of the manner in which this and other OCMA positions
were classified, we do not believe that defendants could have
reasonably relied on this designation in determining that their
discharge of Rold n for political reasons was consonant with her
constitutional rights.
CONCLUSION
CONCLUSION
For the foregoing reasons, we reverse and remand to the
reverse remand
district court for proceedings consistent with this opinion.
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