Lopez-Erquicia v. Weyne-Roig , 846 F.3d 480 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2278
ANA MARÍA LÓPEZ-ERQUICIA,
Plaintiff, Appellee,
v.
ÁNGELA WEYNE-ROIG,
Defendant, Appellant,
OFFICE OF THE INSURANCE COMMISSIONER OF PUERTO RICO;
JANE DOE; JOHN DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Thompson, Kayatta, and Dyk,
Circuit Judges.
Luis N. Blanco-Matos for appellant.
Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,
Sheila Torres-Delgado, Eliezer A. Aldarondo-López, David R.
Rodríguez-Burns, and Aldarondo & López-Bras were on brief, for
appellee.

Of the Federal Circuit, sitting by designation.
January 25, 2017
KAYATTA, Circuit Judge. Ana María López-Erquicia
("López") claims that Puerto Rico's Insurance Commissioner, Ángela
Weyne-Roig ("Weyne"), eliminated López's job as a director within
the Office of the Insurance Commissioner ("OIC") on account of
López's political affiliation. Weyne now seeks interlocutory
review of the district court's rejection of her argument that her
qualified immunity defense entitled her to summary judgment on
López's federal damages claim. Finding that a reasonable official
in Weyne's position could have understood the First Amendment not
to protect López against politically motivated removal from her
job, we reverse.
I. Background
In denying Weyne's motion for summary judgment, the
district court properly viewed the record in the light most
favorable to López, and assumed the facts to be as supported by
López's competent evidence. Neither party claims any error in
that regard. We therefore take the facts "as given," filling any
gaps by similarly viewing the record "in the light most favorable
to [López]." Johnson v. Jones, 515 U.S. 304, 319 (1995).
Under Puerto Rico law, "career" employees may only be
terminated for cause, whereas "trust" or "confidential" employees
"can be selected and removed at will." See P.R. Laws Ann. tit. 3,
§§ 1462e, 1465; see also id. § 1462c. In 2004, after working as
an attorney at the OIC for a number of years, López was promoted
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to the career position of Director of the Anti-Fraud Special
Investigations ("AFSI") Division. In January 2009, she was
appointed by then-Insurance Commissioner Ramón Cruz-Colón ("Cruz")
to the trust position of Auxiliary Commissioner of Legal Affairs.
Several months later, López received an additional trust
appointment to the position of Chief Deputy Commissioner, thereby
elevating her to second-in-command of the agency. Both Cruz and
López were affiliated with the New Progressive Party, as was the
Governor of Puerto Rico at the time.
In November 2012, Puerto Rico elected the gubernatorial
candidate of the Popular Democratic Party. The Governor-elect
subsequently announced that he would be nominating Weyne to serve
as his Insurance Commissioner. In January 2013, López was
reinstated to her previous career position as AFSI Director.
Around the same time, Weyne assumed her position as Insurance
Commissioner. Shortly thereafter, Weyne summoned López to her
office to inform her that "things would be changing." López
responded by pointing out that her AFSI Director position was a
career position, and that she intended to continue serving in the
position "with excellence." Nevertheless, López alleges that over
the course of the next several months, she was subject to various
forms of politically motivated harassment and disparate treatment.
On May 29, 2013, Weyne informed López that Weyne was
eliminating the AFSI Division and transferring López's employees
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to the Market Conduct Division. Because the division of which she
was the director ceased to exist, López was reclassified as a
Principal Attorney and assigned to the Legal Affairs Division.
Although López retained the same salary and fringe benefits, her
duties and the nature of her work changed substantially.
Soon thereafter, López filed this lawsuit against Weyne,
the OIC, and certain unknown OIC staff members (collectively, the
"Defendants"), alleging that the job reassignment and alleged
harassment violated the First and Fourteenth Amendments of the
U.S. Constitution, various provisions of Article II of the Puerto
Rico Constitution, and various provisions of Puerto Rico law.
Under 42 U.S.C. § 1983, López sought damages from Weyne personally
for the alleged violations of federal law.
The district court granted the Defendants' motion for
summary judgment as to López's due process claims, but denied it
as to her remaining claims, including her federal political
discrimination claims for damages, declaratory relief, and
injunctive relief. In so doing, the court rejected Weyne's
principal argument that any rational jury would have to conclude
that López simply lost her job as a collateral effect of a broader
reorganization of the agency. The district court also rejected an
alternative defense raised by Weyne: that even if the
reorganization could be interpreted as an action directed at López
because of her political affiliation, Weyne was entitled to
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qualified immunity on the § 1983 damages claim because a reasonable
official could have thought that López's position fell within the
exception to the First Amendment's bar on political removals
recognized in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.
Finkel, 445 U.S. 507 (1980).1 That denial of the qualified immunity
defense was immediately appealable for the purpose of allowing
review of the district court's assessment of the law as applied to
the assumed facts. See Cady v. Walsh, 753 F.3d 348, 358–59 (1st
Cir. 2014). After Weyne promptly sought such review, we granted
Weyne's request for a stay of the proceedings below and denied
López's request for summary disposition. We now turn to the
substance of the appeal.
II. Discussion
Under our two-part test for qualified immunity in
political discrimination cases, we ask (1) "whether the nature
of [the] position was such that defendants were entitled to
consider . . . political affiliation as a job qualification," and
(2) "even if they were not, whether a reasonable offic[ial] at the
time would have understood patronage dismissal [or demotion] to be
1 This "exception is reserved for instances in which political
affiliation is an 'appropriate requirement for the effective
performance of the public office involved,'" Galloza v. Foy, 389
F.3d 26, 28 (1st Cir. 2004) (quoting Branti, 445 U.S. at 518), and
"helps to ensure that elected representatives will not be hamstrung
in endeavoring to carry out the voters' mandate," id. (citing
Elrod, 427 U.S. at 367).
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barred." López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 25 (1st
Cir. 2008). For ease of reference, we refer to these two
questions, respectively, as the "merits" question and the
"reasonableness" question. We treat each question as a question
of law, to be answered de novo. Hunt v. Massi, 773 F.3d 361, 367
(1st Cir. 2014).
The preferred approach is to decide the merits question
first, reaching the reasonableness question only if the merits
question is resolved against the defendant. See López-Quiñones,
526 F.3d at 25 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
In this case, though, we face an unusual twist: in her answer to
the complaint, Weyne admitted that party affiliation was not an
appropriate requirement for López's position. Hence, the district
court deemed the merits question "uncontested." And on appeal,
while protesting that she could not have conceded a point of law,
Weyne offers no developed argument for why that is so. Like the
district court, then, we also treat the merits question as
"uncontested."
This concession nevertheless does little to narrow the
scope of our inquiry. To answer the reasonableness question--
whether a reasonable official at the time could have understood
López's job to be unprotected--we pretty much have to run through
the entire merits analysis anyhow. We do so not to answer the
uncontested merits question, but rather to see how close a question
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it is. Furthermore, the test we apply in assessing the closeness
of the question "is objective, rather than subjective; we focus on
what a reasonable [official] could have believed, not on
allegations about what [the official] actually believed." Eves v.
LePage, 842 F.3d 133, 142 (1st Cir. 2016); see also López-Quiñones,
526 F.3d at 27. Though qualified immunity does not shield "the
plainly incompetent or those who knowingly violate the law," Eves,
842 F.3d at 140–41 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam)), an official cannot "fairly be said to 'know'
that the law forbade conduct not previously identified as
unlawful," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). With
this twist explained, we turn to examining López's job to see how
a reasonable official could have viewed it.
In conducting this examination, we try to determine the
extent to which "the position involve[s] government decisionmaking
on issues where there is room for political disagreement on goals
or their implementation." Jimenez Fuentes v. Torres Gaztambide,
807 F.2d 236, 241–42 (1st Cir. 1986) (en banc), cert. denied 481
U.S. 1014 (1987). We begin "with an inspection of the functions
of the position in question." Valdizán v. Rivera-Hernandez, 445
F.3d 63, 65 (1st Cir. 2006) (citing Branti, 445 U.S. at 518)). We
"examine the particular responsibilities of the position to
determine whether it resembles a policymaker, a privy to
confidential information, a communicator, or some other office
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holder whose function is such that party affiliation is an equally
appropriate requirement." Jimenez Fuentes, 807 F.2d at 242. We
also look to secondary factors such as relative pay, title, and
legal or legislative classification to further inform our
analysis. See López-Quiñones, 526 F.3d at 28; Fontane-Rexach v.
P.R. Elec. Power Auth., 878 F.2d 1493, 1497 n.4 (1st Cir. 1988);
Jimenez Fuentes, 807 F.2d at 246.
In analyzing López's job functions, both parties rely
primarily on the "Skills Profile" contained in the record. We do
so as well. See Olmeda v. Ortíz-Quiñónez, 434 F.3d 62, 66 (1st
Cir. 2006) (citing Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 8
(1st Cir. 2001)) ("[A]n official description of job functions is
a presumptively reliable basis for determining those functions.").
The Skills Profile establishes that the AFSI Director performs
"[m]anagerial work . . . of great complexity and
responsibility . . . under the general supervision of the Deputy
Supervision and Compliance Commissioner." Though the Deputy
Commissioner "gives out specific instructions for the performance"
of such work, the AFSI Director "[e]xercises initiative and
individual judgment in the performance of . . . her duties."
The Skills Profile also sets forth the various "Duties
and Responsibilities" of the position. Among other things, the
AFSI Director "[p]lans, coordinates and supervises the work of
the . . . [u]nit in order to prepare studies and conduct
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investigations and research about the insurance industry." The
AFSI Director "[c]oordinates with federal, local and state
agencies, as well as with private information agencies that may
assist in the investigative work" of the unit. The AFSI Director
also "[d]evelops rules and procedures and interprets statutes and
regulations related to . . . her area of responsibility." The
AFSI Director not only "[c]ollaborates with and advises the Deputy
Commissioner in matters related to the duties of the unit," but
also "[s]ubstitutes for the Deputy Commissioner, when required."2
So, what are we to make of these functions? To answer
that question, it is helpful to consider a sampling of other jobs
that have qualified or not qualified for protection from
politically motivated removal. As we pointed out in Flynn v. City
of Boston, 140 F.3d 42 (1st Cir. 1998), "[t]he Supreme Court
cases . . . granting or looking toward protection . . . have
involved a floor supervisor, a guard, a process server, an
assistant public defender, a rehabilitation counselor, a road
equipment operator, a garage worker, and a dietary manager." Id.at 45 (citing pertinent cases). We ourselves have found similarly
protected a "director of general services" who was responsible for
inventory, maintenance, and related "mechanical" functions as well
as the supervision of approximately thirty employees, López-
2
The position of Deputy Commissioner is itself a trust
position. See P.R. Laws Ann. tit. 26, § 237(1).
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Quiñones, 526 F.3d at 26-27; an administrative aide to the
assistant director of a municipal agency, Cordero v. De Jesus-
Mendez, 867 F.2d 1, 14-15 (1st Cir. 1989); the "Cleaning
Supervisor" of a municipality, id. at 16–17; and the "Internal
Auditor" of a municipality, whose nonsupervisory job was to check
all municipal payroll and financial records for errors, which he
would then report to a superior, id. at 17–18.
Conversely, we have found unprotected the positions of
Assistant Secretary of State for Protocol Affairs at the Puerto
Rico State Department, who made recommendations to and counseled
Puerto Rico's highest elected officials, Méndez-Aponte v. Bonilla,
645 F.3d 60, 67-68 (1st Cir. 2011); a municipal recreation
commissioner with "considerable capacity to influence municipal
decisions affecting parks and recreation," Foote v. Town of
Bedford, 642 F.3d 80, 86 (1st Cir. 2011); an "administrator" who
developed legal strategy on environmental law issues and cases for
the Puerto Rico Electric Power Authority, Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 429–30 (1st Cir. 2010); a municipal police
chief, Wilson v. Moreau, 492 F.3d 50, 53 (1st Cir. 2007); an
"Executive II" in Puerto Rico's Department of Labor who
participated in "the formulation and implementation of public and
finance policy," Valdizán, 445 F.3d at 65-66; a regional tax
administrator, Galloza v. Foy, 389 F.3d 26, 31–32 (1st Cir. 2004);
associate directors of several community centers, Flynn, 140 F.3d
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at 45-46; and an audit director who supervised employees and
counseled a senior official about policy matters, Zayas-Rodriguez
v. Hernandez, 830 F.2d 1, 3 (1st Cir. 1987).3
We need not precisely locate López's AFSI Director
position on the spectrum established by the foregoing precedent.
Rather, we need determine only whether that precedent "placed
the . . . constitutional question beyond debate," Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011), i.e., whether it clearly
established the position's constitutionally protected status. In
making that determination, we find especially significant López's
responsibility to "[d]evelop[] rules and procedures and
interpret[] statutes and regulations" while "advis[ing]" and even
"[s]ubstitut[ing] for the Deputy Commissioner." These job
requirements suggest "that [López] is an official, that she is
involved in policymaking at least as an adviser, and that she is
expected on occasion to serve as a representative of the [OIC]
itself." Olmeda, 434 F.3d at 67. Moreover, as in López-Quiñones
--where we found a position constitutionally protected and yet the
position's protected status not clearly established--López "headed
the unit in question"; "some of [her] duties were broadly phrased
3
We limit our sampling of cases to those decided before Weyne
eliminated López's position because the reasonableness inquiry
trains on the state of the law at the time of the challenged
action, not at the time that the suit challenging the action is
filed. See Harlow, 457 U.S. at 818; accord López-Quiñones, 526
F.3d at 25.
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(even if seemingly less impressive in practice)"; she was "lightly
supervised"; and she "reported directly to a political appointee."
526 F.3d at 28.
To be sure, López’s position was not classified as a
trust position, and "a legislature's classification system is . . .
entitled to some deference." Jimenez Fuentes, 807 F.2d at 246.
Nevertheless, our precedent makes clear that "[a]ctual functions
of the job . . . control" our analysis. Olmeda, 434 F.3d at 66
(citing Flynn, 140 F.3d at 44); see also Duriex-Gauthier, 274 F.3d
at 8. Here, those actual functions preclude us from finding that
a reasonable official, even one familiar with the law,4 would have
found it clear that López's position fell inside the First
Amendment's protective ambit. That, in turn, means that Weyne is
4
The notion of a "reasonable" official is in some respects
quite "artificial," as few officials will be familiar enough with
the law to determine exactly what is "clearly established."
Hallstrom v. City of Garden City, 991 F.2d 1473, 1483 (9th Cir.
1993); see also Amore v. Novarro, 624 F.3d 522, 535 (2d Cir. 2010)
("[T]he statement in Harlow that reasonably competent public
officials know clearly established law[] is a legal fiction."
(second alteration in original) (quoting Lawrence v. Reed, 406
F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting))). In
reality, the reasonableness question combines a court's assessment
of the law with an official's hypothetical application of that
assessment to the relevant factors. Cf. Heien v. North Carolina,
135 S. Ct. 530, 541 (2014) (Kagan, J., concurring) (making the
analogous observation, albeit in the "more demanding" context of
determining when the Fourth Amendment permits seizures predicated
upon mistakes of law, that "the test is satisfied when the law at
issue is 'so doubtful in construction' that a reasonable judge
could agree with the officer's [proffered] view" of the law
(quoting The Friendship, 9 F. Cas. 825, 826 (C.C.D. Mass. 1812)
(No. 5,125))).
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immune to a federal claim for damages under § 1983, even if the
reorganization was targeted at López because of her political
affiliation. See López-Quiñones, 526 F.3d at 27 ("[T]he abstract
right of a non-policy-related employee to be free from politically
motivated termination . . . is not enough to defeat qualified
immunity.").5
III. Conclusion
We reverse the district court's denial of qualified
immunity and remand for further proceedings consistent with this
opinion.
5 On appeal, López advances no claim that any conduct that
occurred prior to her job reassignment entitles her to recover
damages from Weyne even if her job reassignment does not.
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