Arnaldo JIMENEZ-FUENTES, et al., Plaintiffs, Appellees, v. Hon. Jaime TORRES GAZTAMBIDE, et al., Defendants, Appellants.
No. 85-1655.
United States Court of Appeals, First Circuit.
Argued Sept. 13, 1985. Decided Dec. 20, 1985.
Opinion on Denial of Rehearing Feb. 6, 1986.
807 F.2d 230
Torruella, Circuit Judge, filed concurring opinion. Opinion on rehearing en banc, 807 F.2d 236.
Frank Rodriguez-Garcia, Ponce, P.R., for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, ALDRICH and TORRUELLA, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.
Sir Winston Churchill once said, “Politics are almost as exciting as war, and quite as dangerous.” Remarks, 1920. While the dangers of war are difficult to contain, the courts, federal and state, have made determined efforts in the lesser field. E.g., Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Colon v. CRUV, 84 J.T.S. 52 (P.R.1984); Montaquila v. St. Cyr, 433 A.2d 206 (R.I.1981); Battaglia v. Union County Welfare Bd., 88 N.J. 48, 438 A.2d 530 (1981). At the same time, if we may advance our own phrase, politics is the life-blood of the body politic, and too much constraint could be as dangerous as too little. In the present case, defendant appellants claim over-restraint.
In an attempt to set rules for patronage, or what has been grossly called the spoils system, the legislature of the Commonwealth of Puerto Rico enacted the
In November, 1984, after eight years of governors of the Partido Nuevo Progresista (PNP), the Partido Popular Democratico (PDP) won the governorship, the actual change taking place on January 2, 1985. After a discharge on January 4, shortly revoked, on March 20 plaintiff Jose Vicente Vazquez, a PNP member, was demoted from his position of Regional Director of the San Juan I District to a career position in the agency. On March 18, plaintiff Arnaldo Jimenez Fuentes, Regional Director for Caguas, had been similarly demoted. These actions were the result of orders by defendant Jaime Torres Gaztambide, the newly appointed PDP Secretary of the Department of Housing. The present suit by Jimenez and Vazquez names Gaztambide and Rolando Quevedo del Rio, Executive Director of CRUV, as defendants, alleging the demotions violated plaintiffs’ First Amendment rights, and seeking restoration to their previous positions. After a twelve day hearing the district court issued a preliminary injunction ordering that relief. We denied a stay and granted an expedited appeal, and now affirm.
The basis of the constitutional claim is that plaintiffs are members of the PNP and defendants of the PDP, and, allegedly, defendants removed plaintiffs for that political reason. Defendants deny this, but assert it would be a protected reason in any event, and say, further, that there were substantive reasons beyond that. The court found against them on all points.
By this time we need not dwell on the principle that the district court‘s findings of fact must stand unless clearly wrong, or based upon an error of law. This includes the court‘s present necessary
As to their second point, defendants’ reliance on the classifications in the Personnel Law is misplaced. However material that statute may be in determining whether an employee has a property right in his job from the standpoint of due process removal and actions for discrimination, cf. Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the First Amendment right recognized in Elrod extends to all that fit it substantively; it cannot be legislated away. Indeed, the Personnel Law objectives, embracing all “confidential” employees, seem addressed to the true meaning of the word—employees who must be trusted to respect all confidences to which they might be exposed. See, for example, in section 1350‘s compilation, subsection “(3) Assistant heads of agencies and their personal secretaries and drivers.” However important it is that employees keep confidences, general trustworthiness is not to be measured by political affiliation. To continue the war analogy, our side versus the enemy, would be quite incompatible with First Amendment freedoms. Branti‘s reformulation of the Elrod standard, whether political affiliation is “an appropriate requirement for ... effective performance of the public office involved,” Branti, ante, 445 U.S. at 518, 100 S.Ct. at 1295, recognized that labels like “confidential” or “policy-making” do not alone render political affiliation an appropriate prerequisite for a particular job.
We realize, as we believe did the district court, that a court should go slow before granting, by an interlocutory order, the affirmative relief ultimately requested. And it is, of course, understandable, not only that political officeholders wish to be surrounded by kindred thinkers, but also, to return to our original observation, that there must be some prospective rewards for political activities, or the life-blood will dry up. It is difficult not to share in the views expressed by Justice Powell, dissenting in Elrod, which we have crudely reflected, ante, in speaking of politics as the life-blood of the body politic.1 However, it is also impossible to dismiss the plurality opinion views, not only as to personal rights, but as to the “inefficiency” of “wholesale” turnovers, 427 U.S. at 364 & 367, 96 S.Ct. at 2685 & 2686; see, also, Colon v. CRUV, 84 J.T.S. 52 (P.R.1984), every time there is a shift in the majority of the voters. It is worth noting that in Colon v. CRUV the Supreme Court of Puerto Rico made the same adverse finding with regard to these very offices as did the district court. While defendants’ disappointment is understandable, and their arguments as to the political importance of plaintiffs’ positions not without merit, we cannot say that the district court was clearly wrong in its tentative conclusions, or misapplied the standard.
We will add two comments. Defendants say, suppose our party platform had included a promise to reorganize this department and make drastic changes; how could we have done it? The short answer is that that is not this case. When the voters can be said to have asked for identified changes, they may well be addressable. There must be limits, however, even to this. Changes of personnel simply on party lines may be what the majority voters asked for, but that desideratum is impermissible.
The final matter calling for our comment is defendants’ so-called Mt. Healthy defense.3 In Mt. Healthy, the Court recognized a defendant‘s right to show that, improper motive notwithstanding, it would have discharged the employee in any event. Indeed, if the employment relationship is such that no cause is needed for discharge, the employment can be terminated “for no reason whatever,” so long as it is not an illicit reason. Mt. Healthy, 429 U.S. 274, at 283, 97 S.Ct. 568, at 574 (First Amendment); cf. NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 669 (1st Cir.1979) (unfair labor practice.). There is, of course, a question of proof. See, e.g., Dance v. Ripley, 776 F.2d 370 (1st Cir.1985). Defendants’ claim here fell in two parts. First, they argue that they already knew enough grounds for dissatisfaction to justify demotion on the merits. The court was fully warranted in its interim view that these claimed grounds were not the true motivation for demotion. The Mt. Healthy test is not whether a sufficient reason existed, but whether, in fact, it was the reason truly espoused. Second, defendants claim that there were even stronger reasons, although not come to light at the time of the demotions. The court held that these could not be considered because, obviously, they could not have been relied on. Inasmuch as we are dealing with a continuing injunction, this was error. See Smallwood v. United Airlines, Inc., 728 F.2d 614, 623 (4th Cir.1984); Gibson v. Mohawk Rubber Co., 695 F.2d 1093, 1097 (8th Cir.1982); Murnane v. American Airlines, Inc., 482 F.Supp. 135, 148 (D.D.C.1979), aff‘d, 667 F.2d 98 (D.C.Cir.1981), cert. denied, 456 U.S. 915, 102 S.Ct. 1770, 72 L.Ed.2d 174 (1982). It is irrelevant that these were age discrimination cases; the principle is the same. We remind the court of Mt. Healthy‘s caveat, that a party is not to be put in a better position as a result of protected conduct than he would otherwise have been in. 429 U.S. at 285, 286, 97 S.Ct. at 575. That is not presently this case, but the court erred in saying it would not consider matters coming to defendants’ attention subsequent to the demotion.
At this time and on this record, the court‘s refusal to consider these matters was harmless error. However, it is to be borne in mind that plaintiffs, under the Puerto Rican statute, have no property in-
We have considered defendants’ other complaints, and find none worthy of discussion. That there could be found to be irreparable harm, and due public interest, see Elrod, ante, 427 U.S. at 373, 96 S.Ct. at 2689.
Affirmed.
TORRUELLA, Circuit Judge (Concurring).
Although I agree with the result reached by my brethren, and with much of their reasoning, I respectfully disassociate myself from those parts of this opinion which constitute obiter dicta and are advisory in nature. Paschall v. Christee-Stewart, Inc., 414 U.S. 100, 94 S.Ct. 313, 38 L.Ed.2d 298 (1973), reh‘g denied, 414 U.S. 1138, 94 S.Ct. 884, 38 L.Ed.2d 763 (1974); Stephens, Inc. v. United States, 464 F.2d 53 (8th Cir.1972), cert. denied, 409 U.S. 1118, 93 S.Ct. 911, 34 L.Ed.2d 702 (1973). Particularly when dealing with what the majority, in quoting Churchill, has aptly described as something “quite as dangerous” as war, I am of the opinion that Article III courts should be especially fastidious in not supplying ammunition for future use by any side. It would appear that parties as ably represented as were those in this litigation should be able to navigate the well-charted waters of § 1983 litigation without unnecessary prompting on our part.
Memorandum on Petition for Rehearing
PER CURIAM.
In accordance with a growing, and all too frequent, practice, disappointed appellants seek rehearing with allegations founded
Next, defendants protest that they “did not rely on the classifications of the Personnel Law.” Seemingly they forget that a whole section of their Memorandum of Law has an early sentence setting the tone of the several pages following. “Here, appellants’ actions must be understood in the context of the
Finally, the petition quite misstates what we said in regard to Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
The petition is denied.
COMMONWEALTH OF PUERTO RICO
CENTRAL OFFICE FOR PERSONNEL ADMINISTRATION
BOX 8476, FERNANDEZ JUNCOS STATION, SANTURCE, P.R. 00910
JOB DESCRIPTION
1. Department or Agency: Housing Department
2. Bureau, division and section: Public Housing Adm.
Caguas Region
* * *
4. First Surname: JIMENEZ
Second Surname: FUENTES
Name: ARNALDO
* * *
6. Title of Classification of Position: Regional Director
* * *
7. Detail the work you perform in the order of importance of the different tasks, starting with the most important. . . . Use your own words and make a description of your duties so clearly that persons not familiriazed [sic] with your job would understand exactly what [it] is that you do. . . .
1. Directs, plans and supervises the operational and administrative activities of the Region, such as: Accounting, Personnel and Occupation, Maintenance, Modernization, Community Labor, Management and Section 8.
2. Reviews and signs the reports submitted to the Central Office, HUD and other related agencies.
3. See to it that the norms and regulations are complied with in accordance to the philosophy of the Public Housing Administration and the HUD Federal Agency.
4. Arranges periodic meetings with supervisory personnel to counsel and inform as to changes in norms and regulations and/or new work guidelin[e]s and other matters.
5. Reviews, approves and signs the reports on rent changes, which are sent to the Federal Agency, Central Office of the Housing Department and other agencies; reports on Accounting, purchase orders, disbursements, functional budgets of the Region and preliminary budget of maintenance works and others.
6. Attends, representing the Agency, to meetings with other government officers or civic leaders from the community in order to discuss and coordinate the implementation of Social Services, economics, health and other type[s] of services offered to public housing residents and programs of the Housing Department.
7. Drafts reports related to the work performed.
8. Drafts correspondence for the signature of the Associate Director and/or CRUV Executive Director.
9. Supervises and evaluates the Supervisors of the different sections attached to the Region.
10. Makes recommendations on personnel recruitment, dismissals, promotions, salary increases and other relations with the Region‘s employees.
11. Recruits necessary irregular personnel at the Region.
12. Receives and hears residents or general public in problematic cases which have not been solved at a lower level.
13. Performs periodic visits to the housing projects at the Region.
14. Attends periodic meetings with the Associate Director, to discuss problems related to the operations of the Region.
15. Offers recommendations to the Executive Director to improve the services rendered by the Program.
16. Arranges meetings with residents and/or organized groups in the community for the coordination of social activities.
17. Plans and organizes training for the Region‘s employees in coordination with the Training Committee.
18. Receives telephone calls to give or receive information related to the Region‘s operations.
19. Is responsible for the preparation and control of the functional budget of the Region.
20. Performs any task as assigned.
Arnaldo JIMENEZ FUENTES, et al., Plaintiffs, Appellees, v. Honorable Jaime TORRES GAZTAMBIDE, et al., Defendants, Appellants. No. 85-1655. United States Court of Appeals, First Circuit. Sept. 19, 1986. As Amended Sept. 24, 1986.
Bailey Aldrich, Senior Circuit Judge, filed concurring opinion.
Torruella, Circuit Judge, filed dissenting opinion.