Duriex-Gauthier v. Lopez-Nieves , 274 F.3d 4 ( 2001 )

United States Court of Appeals
For the First Circuit
____________________
No. 01-1746
PETER DURIEX-GAUTHIER,
Plaintiff, Appellee,
v.
CARLOS LOPEZ-NIEVES,
Defendant, Appellant,
JANE DOE,
AND THE CONJUGAL PARTNERSHIP CONSTITUTED BY LOPEZ-NIEVES AND DOE,
Defendants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Kravitch*, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Jorge Martínez Luciano with whom Johanna Emmanuelli Huertas and
Law Offices of Pedro Ortiz Alvarez, PSC were on brief for appellant.
Ivan Diaz Lopez for appellee.
*Of the Eleventh Circuit, sitting by designation.
____________________
December 10, 2001
____________________
LYNCH, Circuit Judge. Peter Duriex-Gauthier held the
position of Personnel and General Services Officer in the
Ombudsman’s Office of Puerto Rico from December 1991 to August
31, 1998. Following the termination of his employment, he sued
Carlos Lopez-Nieves, the newly appointed Director of the
Ombudsman’s Office, in Lopez-Nieves’s personal and official
capacities. Duriex-Gauthier made two claims. First, he argued
that his firing was in violation of his First Amendment rights
in that Lopez-Nieves, a member of the New Progressive Party
(NPP), terminated his employment because Duriex-Gauthier was a
Popular Democratic Party (PDP) member and that his position was
not a position for which political affiliation was an
appropriate consideration. Rutan v. Republican Party, 497 U.S.
62, 71 (1990); Branti v. Finkel, 445 U.S. 507 (1980). Second,
he says that he was in a tenured position under Puerto Rico law
and his firing violated his procedural due process rights.
Duriex-Gauthier sought damages and reinstatement.
The defendant moved for summary judgment on the
question of qualified immunity as to both claims. The district
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court denied the motion on all grounds. Duriex-Gauthier v.
Lopez-Nieves, 135 F. Supp. 2d 311 (D.P.R. 2001). Defendant
appeals.1 We have jurisdiction over an appeal from a denial of
summary judgment on the grounds of qualified immunity where the
denial turns on an issue of law. Behrens v. Pelletier, 516 U.S.
299, 306 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
Our jurisdiction over the issue of the defendants' qualified
immunity from monetary damages is not contested.
I.
The Ombudsman’s Office was created by statute, as an
adjunct to the Legislature of Puerto Rico. Ombudsman Act, 1977
P.R. Laws 134 (codified as amended at 2 P.R. Laws Ann. §§ 701-
726 (1994)). Thus, unlike most political termination claims,
the executive branch is not at issue here. The Ombudsman is
appointed for a fixed six-year term of office, 2 P.R. Laws Ann.
§ 704, and so is outside the four-year electoral cycle. He is
appointed by the Governor, with the advice and consent of the
1 Defendant denies the discharge was politically motivated.
This disputed fact is immaterial to whether plaintiff’s position was a
position for which political affiliation is appropriate or to whether
the defendant could have reasonably believed it was so. Defendant also
moved for summary judgment on the merits; we have no appellate
jurisdiction over that aspect of the denial of the motion except to the
extent that the issues are implicated in the immunity issue.
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Puerto Rico legislature, and is statutorily limited to no more
than two terms of office. Id.
The duties of the Ombudsman’s Office are to investigate
the administrative acts of the agencies and conduct
investigations of citizens' claims. 2 P.R. Laws Ann. § 710.
The Ombudsman is authorized to adopt and promulgate the
necessary rules and regulations to carry out the duties of his
Office and to establish regulations for the filing and handling
of complaints, procedures for investigations, the manner of
informing his findings, and the personnel administration of his
office. Id. § 708. After completing an investigation, the
Ombudsman may recommend a remedy, including, for example, that
an administrative act should be altered or set aside, that the
law or regulations on which the administrative act is based
should be modified, or that the agency should perform another
action. 2 P.R. Laws Ann. § 717.
Puerto Rico does have a civil service system, called
the Puerto Rico Service Personnel Act, 3 P.R. Laws Ann. §§ 1301-
1421 (1994). The Personnel Act, however, does not apply to the
Legislative Branch, id. § 1338(a), and so does not apply to the
Ombudsman’s Office. The original 1977 Ombudsman Act stated that
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all employees in the Office were to be considered as "trust"
employees, as used in the Personnel Act, which in turn specifies
that such employees are subject to free removal. 1977 P.R. Laws
134, art. 7; 3 P.R. Laws Ann. § 1350. The Ombudsman Act also
authorizes the Ombudsman to adopt regulations to administer the
personnel of that Office. 2 P.R. Laws Ann. § 703.
The pertinent regulation here is Regulation No. 86-3.
That Regulation contains two seemingly inconsistent sections.
Section V, entitled “Office Composition,” states that the Office
is excluded from the Personnel Act and that "all the employees
of the Ombudsman’s Office are of free selection and removal."
The defendant relies heavily on this section.
However, in Section XVIII of the Regulation, entitled
“Retention in Service," subsection A, entitled "Employment
Security," states that "[t]he employees of the Office of the
Ombudsman will have tenure in their positions, if they satisfy
the criteria of productivity, efficiency, order and discipline
that should prevail in the public service. Plaintiff relies
heavily on this section.
Section VI, entitled "Recruitment, Selection and
Removal of Employees," is also pertinent, as it appears to carve
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out an exception to Section XVIII's tenure provision for
employees designated as "trust" employees. Section VI provides:
1. In the case of employees of trust and confidence
whose duties have to do with the formulation of public
policy and those who offer personal service directly
to the Ombudsman, the provisions of this Regulation
will not be mandatory in reference to the recruitment,
selection and removal.
. . . .
3. The trust and confidence employees, whether it be
that they participate in the formulation of public
policy or provide personal or direct services to the
Ombudsman, will be of free removal.
A 1987 amendment to the Ombudsman Act eliminated the
Act's statement that all employees would be in the trust
service, clarified that employees were excluded from the
Personnel Act, and provided that the Ombudsman’s Personnel
Regulation shall apply to employees of the Office. 2 P.R. Laws
Ann.§ 707. The Ombudsman's Personnel Regulations cited above
remained unchanged.2 Duriex-Gauthier says this was a scrivner’s
2 However, on September 22, 1987, the then-Ombudsman, Mr. R.
Adolfo de Castro, issued an Administrative Order to amend Section 5 of
Regulation 86-3. This Administrative Order named four job
classifications, comprising six positions, that would be regarded as
“officers of strict confidence to the Ombudsman”: one deputy ombudsman,
two executive secretaries, one special aide and two drivers.
Plaintiff’s job was not included. Defendant points out that these six
positions were ones of strict confidence, which does not mean that
plaintiff’s position was not also one of confidence.
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error, that the regulation stating that the Ombudsman's
employees are of free selection and removal should have been
eliminated when the statute was amended. Nonetheless, the
regulation remains.
Duriex-Gauthier was hired in the Office starting in
1986, when it was then under the Directorship of a PDP member,
and was promoted to various positions until he became head of
Personnel and General Services in 1991. The forms filed with
the Central Office of Personnel Administration, a different
agency, describe him as a trust and confidence employee. His
various employment contracts stated that each of his positions
was a “trust” position.3 This is a term of art in the government
of Puerto Rico, defined within the civil service law as "those
who intervene or collaborate substantially in the formulation of
the public policy, who advise directly or render direct services
to the head of the agency." 3 P.R. Laws Ann. § 1350 (1994).
The original statute creating the Ombudsman's Office referenced
this definition, and Section VI of the Ombudsman's Regulations,
3 This is translated from the Spanish term "confianza," which
is alternately translated as "trust," "confidence," or "trust and
confidence" in the record here and in our past cases. We will use the
translations provided to us, and the reader should be aware that,
although the terminology may vary, the substance remains the same.
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quoted above, mirrors the Personnel Act definition as well,
suggesting that this term was meant to have the same meaning
within the Ombudsman's Office.
Carlos Lopez-Nieves, a NPP member, was appointed
Ombudsman on July 21, 1998. In August 27, 1998, Lopez-Nieves
sent a termination letter to Duriex-Gauthier which did not state
any grounds for his termination, but said his position was one
of trust. Duriex-Gauthier contests whether his position was one
of trust, arguing that the Regulations cited above gave him
tenure in his position, thereby changing his position from one
of trust into one of right. He further argues that his actual
duties lacked the hallmarks of such a position, namely,
substantial involvement in policymaking and direct advising or
services to the agency head.
As to the debate over whether Duriex-Gauthier's
position was one of trust, this court has previously indicated
that designating a position as one of "trust" indicates that it
is considered a policymaking position under Puerto Rican law,
which is not dispositive of the federal question under Rutan,
497 U.S. 62, and Branti, 445 U.S. 507, but is entitled to some
deference by this court. Roldan-Plumey v. Cerezo-Suarez, 115
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F.3d 58, 64-65 (1st Cir. 1997); Ortiz-Pinero v. Rivera-Arroyo,
84 F.3d 7, 16 (1st Cir. 1996). We have consistently held that
the job description is the best, and sometimes dispositive,
source for determining the inherent functions of the position.
Roldan-Plumey, 115 F.3d at 62.4
During plaintiff’s employment as Personnel Officer, the
job description for the position provided:
Duties of Position:
This is a technical and administrative job of great
complexity and responsibility in the field of
personnel administration comprising the performance of
a series of tasks with a large variety. The employee
would receive general and specific instructions on the
work to be performed. The employee shall work with
great technical independence responding directly to
the Deputy Ombudsman of the office as to the
conformity of its job with the rules set forth.
Shall perform the following duties:
Shall be responsible for the planning and supervision
of all the personnel activities including the
classification and compensation aspects of the
positions, training, transactions, leaves, payrolls,
personnel relations and similar aspects in the
personnel administration field.
4 We have also looked to information such as the size of the
agency and where the position is in the management structure. See
Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1997).
Unfortunately, defendants have not provided any such information in the
record.
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Shall interpret and apply the laws and regulations
governing personnel administration.
Shall analyze the problems of organization and
procedures.
Shall plan, assign and organize the work of the
personnel unit.
Shall act as the liaison officer between the Office
and COPA [the Central Office for the Administration of
Personnel].
Shall perform other jobs similar to this.
"[D]uties prevail over titles; everything depends on
circumstances." Flynn v. City of Boston, 140 F.3d 42, 44 (1st
Cir. 1997). We turn to the summary judgment issues.
II.
A. Qualified Immunity on First Amendment Claim
The general test for qualified immunity is often stated
as a two-part test. First, was the constitutional right in
question clearly established at the time? Anderson v.
Creighton, 483 U.S. 635, 638 (1987). Second, would a
reasonable, similarly situated individual understand that the
challenged conduct violated that established right? Swain v.
Spinney, 117 F.3d 1, 9 (1st Cir. 1997). Whether a right is
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clearly established is an issue of law for the court. Elder v.
Holloway, 510 U.S. 510, 516 (1994).
The test for qualified immunity in cases involving
political firing claims is well established. "[T]o decide the
'qualified immunity' issue, we need only determine whether the
plaintiff[’s] position[] 'potentially' concerned matters of
partisan political interest and involved a 'modicum' of policy-
making responsibility, access to confidential information, or
official communication." Zayas-Rodriguez v. Hernandez, 830 F.2d
1, 2 (1st Cir. 1987); see also Juarbe-Angueira v. Arias, 831
F.2d 11, 14 (1st Cir. 1987); Mendez-Palou v. Rohena-Betancourt,
813 F.2d 1255, 1259 (1st Cir. 1987).
The Supreme Court has, however, noted the importance
of providing certainty as to what are the clearly established
rules of primary conduct for government officials. County of
Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998). Rulings on
qualified immunity grounds avoid reaching the issue of whether
there is a violation at all. For these reasons, the Court has
expressed that “the better approach to resolving cases in which
the defense of qualified immunity is raised is to determine
first whether the plaintiff has alleged a deprivation of a
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constitutional right at all.” Id. See Siegert v. Gilley, 500
U.S. 226, 232 (1991). Because we consider this an issue
concerning the primary conduct of government officials, we turn
to it.
1. Merits of First Amendment Claim
There is no issue about the general existence of the
First Amendment right at issue here; this case turns rather on
whether the right extends to persons in this position. This
circuit has established a two-part test to determine whether
“the hiring authority” can demonstrate that party affiliation is
an appropriate requirement for the effective performance of the
public office involved. Jimenez Fuentes v. Torres Gaztambide,
807 F.2d 236 (1st Cir. 1986) (en banc). In Jimenez Fuentes, this
court described the two prongs. Id. at 241-42. First, we
determine whether "the position involve[s] government
decisionmaking on issues where there is room for political
disagreement on goals or their implementation." Id. Second, we
"examine the particular responsibilities of the position to
determine whether it resembles a policymaker, [one] privy to
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confidential information, a communicator, or some other office
holder whose function is such that party affiliation is an
equally appropriate requirement." Id. at 242; see also Roldan-
Plumey, 115 F.3d at 62; Ortiz-Pinero, 84 F.3d at 12; O’Connor v.
Steeves, 994 F.2d 905, 910 (1st Cir. 1993).
The district court found that plaintiff had waived any
issue on the first prong by failing to respond to the
defendant's contention that the duties of the Office of the
Ombudsman involve decionmaking where there is room for political
disagreement. Duriex-Gauthier, 135 F. Supp. 2d at 315. As to
the second prong, the district court found in plaintiff’s favor
that "the duties of [plaintiff’s position] are those of a
typical technocrat." Id. at 316. The court discounted as
factually inapposite numerous decisions of this court finding
personnel directors' positions to be ones in which party
affiliation was, in the requisite sense, an appropriate job
requirement. Id. (citing Cordero v. De Jesus-Mendez, 867 F.2d
1, 11-12 (1st Cir. 1989) (personnel director of municipality)
and Zayas-Rodriguez, 830 F.2d at 3 (director of personnel of
Puerto Rico Highway Authority)). The court ultimately denied
summary judgment on the ground that "plaintiff’s position was
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that of a technocrat devoid of even a modicum of policymaking or
confidential responsibilities." Id. at 317.
Duriex-Gauthier's job description describes a Personnel
Director "with great technical independence" who reported
directly to the number two person in the agency. He was not
limited to merely making recommendations on personnel matters,
but rather was also "responsible for the planning and
supervision of all the personnel activities." His duties
included analyzing the problems of organization and procedures
and interpreting and applying the personnel laws. Further, the
duties explicitly included a liaison role with the Central
Office for the Administration of Personnel. These duties appear
to fit comfortably within the second prong of the Jimenez
Fuentes test, and are strikingly similar to the duties of the
personnel director in the Cordero case. 867 F.2d at 11-12. In
this circuit we
have regularly upheld against First Amendment
challenge the dismissal on political grounds of mid-
or upper-level officials or employees who are
significantly connected to policy-making. This result
has followed where the plaintiff merely represented
the agency’s policy positions to other entities or to
the public or where important personnel functions were
part of the portfolio.
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Flynn, 140 F.3d at 45.
This conclusion is reinforced by the description of the
position in each of plaintiff’s employment contracts as a trust
position, and by Section VI of Regulation 86, which states that
trust employees of the Ombudsman's Office are subject to free
removal. We also note that under Puerto Rican law, personnel
directors are often considered to be trust employees. Franco v.
Municipio de Cidra, 113 P.R. Dec. 260, 263 (1982) (noting that
because mayor had delegated his statutory authority to name
employees to the personnel director, who had primary authority
for advising mayor on personnel matters, position was "ipso
jure" one of trust). While the labels do not determine the
outcome, Ortiz-Pinero, 84 F.3d at 12, the labels here coincide
with an objectively reasonable conclusion that the duties are
those of a position exempt from the Branti/Rutan rule.
Duriex-Gauthier attempts to avoid this conclusion with
an argument that the very nature of the Ombudsman’s Office is
non-political and so plaintiff must be protected by the First
Amendment. Plaintiff stresses that the Ombudsman is not part of
the executive branch but of the legislative branch, and that the
Ombudsman is appointed for a six-year term deliberately to
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remove him from the four-year electoral cycle.5 Our precedent
has not been restricted to the executive branch. This court has
routinely applied Branti to public agencies, such as the Puerto
Rico Highway Authority, and has found certain top level jobs to
be excluded. Zayas-Rodriguez, 830 F.2d at 304. The ultimate
question is whether the position is one in which political
affiliation is a reasonably necessary requirement; if so the
position is an exception to the Branti/Rutan standard. That
question rarely permits a categorical answer and nothing in the
Supreme Court caselaw limits the positions for which political
affiliation is appropriate to the executive branch. Moreover,
the Ombudsman is attached by law to the legislative branch, the
branch in which partisan political concerns are at their
strongest. The Ombudsman is appointed by the governor and must
be approved by a majority of all members of the legislative
branch. 2 P.R. Laws Ann. § 704. Although the Ombudsman's
appointment may reflect a compromise between political parties,
at least in instances where opposing parties control the
5 Plaintiff stated in his brief that the Ombudsman is appointed
to a ten-year term. However, the Ombudsman, according to the statute,
is appointed to a six-year term. 2 P.R. Laws Ann. § 704. The mistake
is irrelevant to our analysis.
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executive and the legislature, we think it clear that the
overall functions of the Ombudsman “involve government
decisionmaking on issues where there is room for political
disagreement on goals or their implementation,” Jimenez
Fuentes, 807 F.2d at 241-42, such as decisions about which
investigations to undertake and on which issues to focus.
Plaintiff was hired by a PDP Director and fired by a NPP
Director, each of whom may have taken different approaches to
the Ombudsman's duties based on party affiliation.
2. Application of Qualified Immunity Standard
Even had we not addressed whether plaintiff's position
was a protected position, immunity should have been granted.
While the district court could have granted immunity on the
basis that it was clear that the position was one for which
party affiliation was appropriate, it could not deny immunity on
the basis that in its view the position was not. That ruling
does not dispose of immunity but simply brings the court to the
dispositive question: whether an objectively reasonable person
in Lopez-Nieves's position could conclude that Duriex-Gauthier's
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position "'potentially' concerned matters of partisan political
interest and involved a 'modicum' of policy-making
responsibility, access to confidential information, or official
communication." Zayas-Rodriguez, 830 F.2d at 2. The answer to
the appropriate question leads to the conclusion that Lopez-
Nieves was entitled to immunity.
In previous cases, we have granted immunity partially
because a defendant might reasonably rely, even if mistakenly
so, on the position’s status as “confidential or trust” under
the Puerto Rico Public Service Act. See Roldan-Plumey, 115 F.3d
at 65. Here, we think an objectively reasonable person in
defendant’s position could conclude both that Duriex-Gauthier’s
position as Personnel Director was not a protected position,
particularly in light of our previous decisions holding that
personnel directors were not protected, of Duriex-Gauthier's
contract and job description, and of Regulation 86, which
indicated that his position was one of free removal.
B. Qualified Immunity on Due Process Claim
On the due process claim, the only issue before us is
whether defendant is entitled to qualified immunity, and
therefore the only question we need answer is whether a
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reasonable person in Lopez-Nieves's position would have thought
that firing Duriex-Gauthier violated his due process rights.
The due process claim turns on whether Duriex-Gauthier had a
property interest in his job, which is a question of Puerto
Rican law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985). There is no strong federal concern to provide
guidance as to the primary conduct of Puerto Rican government
officials here. Plaintiff’s theory is that he was neither a
confidence nor a trust employee under state law, but was an
employee entitled to “tenure” under Section VXIII of Regulation
86 and so had a property interest in his job. If he did have
such an interest, he could not be deprived of it without due
process of law.
It is unclear to us whether the process he claims is
due is that set forth in Regulation 86 or in the Personnel Law.6
The tensions between Sections XVIII and Section V of Regulation
86 may create some ambiguity as to whether Ombudsman's Office
6 The existence of these processes raises a question of the
nature of plaintiff’s due process claim, if any, and the nature of any
relief available in light of the Parratt-Hudson doctrine. See O’Neill
v. Baker, 210 F.3d 41, 50 (1st Cir. 2000) (citing Parratt v. Taylor,
451 U.S. 527 (1981) and Hudson v. Palmer, 468 U.S. 517 (1984)). But
see Zinerman v. Burch, 494 U.S. 113, 133-37 (1990) (discussing the
limits of Parrat-Hudson doctrine).
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employees are generally subject to free removal or have tenure.
However, Duriex-Gauthier's position does not seem to fall within
that ambiguity; Section VI appears to create an exception to
Section XVIII for employees who occupy trust positions, which
Duriex-Gauthier's contract says he did. It suffices to say that
Lopez-Nieves could reasonably have concluded that Duriex-
Gauthier did not have a property interest in his job under
Regulation 86. As to the Personnel Act, there is law to the
effect that one not recruited according to the merit principle
embodied in that Act, 2 P.R. Laws Ann. § 1333, has no right to
the processes provided by the Act. Colon Perez v. Alcalde del
Municipio de Ceiba, 112 P.R. Dec. 740, 747 (1982). Lopez-Nieves
has produced an unrebutted affidavit to the effect that Duriex-
Gauthier was not so recruited and therefore it appears that the
plaintiff has no property right under the Personnel Act. Thus,
we cannot say a reasonable director could not objectively
conclude there was no property interest involved.
III.
Accordingly, we reverse the district court, and remand
with directions that defendant be granted qualified immunity as
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to all claims, that the First Amendment claim be dismissed, and
for further proceedings consistent with this opinion on the
plaintiff's claim for injunctive relief on the alleged due
process violation.
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