Pеter DURIEX-GAUTHIER, Plaintiff, Appellee, v. Carlos LOPEZ-NIEVES, Defendant, Appellant, Jane Doe, and the Conjugal Partnership Constituted By Lopez-Nieves and Doe, Defendants.
No. 01-1746
United States Court of Appeals, First Circuit
Heard Nov. 6, 2001. Decided Dec. 10, 2001.
Affirmed.
Ivan Diaz Lopez for appellee.
Before BOUDIN, Chief Judge, KRAVITCH,* Senior Circuit Judge, and LYNCH, Circuit Judge.
LYNCH, Circuit Judge.
Peter Duriex-Gauthier held the position of Personnel and General Services Officer in the Ombudsman‘s Office of Puertо 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 Democrаtic Party (PDP) member and that his position was not a position for which political affiliation was an appropriate con-
The defendant moved for summary judgment on the question of qualified immunity as to both claims. The district 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.
The duties of the Ombudsman‘s Office are to investigate the administrative acts of the agencies and conduct investigations of citizens’ claims.
Puerto Rico does have a civil service system, called the Puerto Rico Service Personnel Act,
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 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.
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 wаs 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
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 arguеs 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 F.3d 58, 64-65 (1st Cir.1997); Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 16 (1st Cir.1996). We havе 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 employeе 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.
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.1998). We turn to the summary judgment issues.
A. Qualified Immunity on First Amendment Claim
The gеneral 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 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 рlaintiff[‘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 issuе 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 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 politiсal 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 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 fаiling to respond to the defendant‘s contention that the duties of the Office of the Ombudsman involve decisionmaking 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
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 Administratiоn 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 policymaking. 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. 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 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 3-4. The ultimate ques-
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 appropriаte, 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 position “‘potentially’ concerned matters of partisan political interest and involved a ‘modicum’ of policymaking responsibility, access to confidential information, or оfficial 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 cоuld conclude 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 thеrefore the only question we need answer is whether a 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
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 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 cоuld 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,
III.
Accordingly, we reverse the district court, and remand with directions that defendant be granted qualified immunity as 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.