*2 argument sake of Angueira’s that Juarbe BOWNES, Before BREYER and unlawful, so, dismissal was even the law in TORRUELLA, Judges. Circuit dismissal, to the viewed as of BREYER, Judge. Circuit is, March was unclear. That as of say that time one could not that the dismis- In March the Director of the Public And, sal was clearly unlawful. where Building Authority of Commonwealth question action in is clearly unlawful (the Director”) “PBA Puerto Rico dis does a defendant lose his immuni- Angueira missed Luis from Juarbe his ty. Fitzgerald, See Harlow v. 457 U.S. at the PBA’s Director for the deciding S.Ct. at In Aguadilla Region. Angueira Juarbe subse appeal ground, express this narrow suit, quently brought claiming that his dis no plaintiff view about whether the is ulti- missal violated the United States Constitu mately entitled to reinstatement. tion. He said that the PBA Director dis missed him he because was a member of Progressive (the “NPP”) I Party New and that protected First Amendment new, This case raises generally signif no him from “politically such a based” dis legal icant previously issues. haveWe con charge. Finkel, Branti v. “qualified sidered the immuni (1980); 63 L.Ed.2d 574 El ty” damage liability from in the context of Burns, rod v. a claim “politically motivated dis

49 L.Ed.2d 547 He asked the court charge”. Inclan, See Roman Melendez v. both to order his reinstatement and to re (1st Cir.1987); Roure v. Her quire pay the PBA him dam Colon, (1st Cir.1987); nandez ages. Quintana Anselmi, (1st Cir.1987); The PBA director moved to dismiss the Alvarado v. Sonia Za Raffucci damage (1st Cir.1987); claim. He yas, said the dismissal Vazquez F.2d 818 legal either illegality Colon, or its in early Rios v. Hernandez F.2d 319 least, was, (1st Cir.1987); unclear and that he Rosado v. possessed (1st therefore “qualified Cir.1987); immunity” Mendez-Palou Rohe- forbid (1st dismissals of those in “upper- na-Betancourt, F.2d 1255 Cir. managerial-type government posi- v. Rohena-Betan 1987); Monge-Vazquez level” Cir.1987); Rather, Cheveras then court, F.2d 22 Court had tions. Gonzalez, F.2d 125 general highly v. Rivera set forth the terms. Pacheco law Rodriguez v. Cir.1987); Rodriguez provided pro- It that the said Constitution (1st Cir.1986); Munoz, F.2d 138 politically-based discharge Munoz tection Mora, 792 F.2d Izquierdo De Abadia public employees jobs those in than *3 Cir.1986). See also Jimenez 1187 “party appropriate where affiliation is an Gaztambide, 807 F.2d v. Torres Fuentes performance requirement for the effective (1st Cir.1986) injunction (preliminary 236 Branti, involved.” 445 office — -, denied, claim), U.S. cert. But, the S.Ct. U.S. at (1987); and De 95 L.Ed.2d just “party where specify Court did Development v. Government Choudens not, was, “appropriate.” or was affiliation” Cir.1986) (same), Bank, any conclude with cer- It was difficult to — U.S.-, denied, cert. was “an tainty “party that affiliation” explained We have 95 L.Ed.2d appropriate requirement for effective are entitled generally officials that govern- of most performance” immunity” personal from lia “qualified to (in predict It was difficult to jobs. ment acts, in the course of bility taken for those upper-level jobs) just these respect to how duties, par a may that have violated their instances, courts, in particular would the law rights unless ty’s constitutional line de- draw the Court rights estab defining those in Branti —a line seeks to scribed Abadia, De plaintiff’s favor.” in lished (1) newly separate instances where a elect- added); (emphasis see also F.2d at political party legitimately replace ed can Briggs, 475 U.S. Malley v. in important hold offices order those who (1986) carry out its electoral mandate and to “all but the immunity protects (qualified provide voters with the confidence it is knowing- incompetent or those who plainly (i.e., ought a doing so where ‘new broom’ law”); Fitzgerald, ly Harlow v. violate clean’), (2) political pa- ‘sweep pure from (officials 818, 102 S.Ct. at 2738 457 U.S. at (i.e., boys’). tronage ‘jobs for the as their conduct does immune “insofar fact, In courts have been reluctant statutory or clearly established not violate exception” “political Branti’s too rights of which a reasonable define constitutional known”; prohibit newly elected narrowly the reason- lest person would have clearly policies implementing “measured reference new ableness an (antitrust, law at the time action ... technical devel areas that sound And, (footnote omitted). occurred”) services) which, banks, but opment park a specifically more defend- circumstances, have said may depending on time and discharge claim ant faced with a charged. Tomczak politically See become unless, enjoys qualified City Chicago, dismissal, “it was estab- time Cir.), particular lished that Lower courts L.Ed.2d 289 responsi- issue, light positions exception (through applied Branti’s positions, those were inherent bilities protec finding First Amendment broadly, patronage [constitutionally] protected from against politically dismissals tion based Mendez-Palou, 813 F.2d at dismissal.” very level highly technical or low original). (emphasis See city grader, a court jobs, road such a at-, 107 S.Ct. at Creighton, clerk, bailiff, bookkeeper, deputy a a (“in law preexisting sheriff, a supervisor or a a deputy particular must unlawfulness act] [of They explic office. branch of an auditor’s apparent”). be protection to assistant di itly an denied county, for a public information that, rector pointed also We have depart- of a deputy the first commissioner did not part, early the law most water, superintendent government says ment of of em wealth it or has dismissed Chicago district, park ployment for a and, approximately persons, demoted agent, attorney, a fee assistant district these, suit). brought 319 have We have solicitor, the city solicitor and assistant “legislature’s said that classification Home state director of the Farmers Admin El- system” does not determine “the istration, parks deputy commissioner. question,” rod/Branti also we have nothing See Appendix. There is in these “it is said entitled to some deference.” decisions, example, suggest that would Fuentes, Jimenez 807 F.2d at 246. Elrod Branti radically changed existing or upshot is that defendants will practice, practice permits federal normally enjoy qualified immunity from replace Presidents to at will United States damage liability upper-level, managerial- regional Attorneys, heads General type job cases, dismissal cases where the Administration, up percent Services to 10 jobs are not purely technical top agency Senior Executive Servic *4 scientific in nature. This in court said many positions, es and of other holders Mendez-Palou that a enjoys defendant significant offices. Senate on Comm. Govt. Affairs, “qualified immunity” Cong., Sess., long as as in Policy and 98th 2d the question Supporting “potentially Positions concerned of matters (Comm. 1984); 3134(b) partisan political Print 5 U.S.C. interest and involved at § least modicum policymaking responsi bility, information, or access to confidential recognized, as we have the Mendez-Palou, official communication.” held, Court of Puerto Rico (emphasis added). 813 F.2d at 1259 This many upper and level legal governs standard the case us. before government jobs fall outside “po- Branti’s But, exception.” litical as we have also said, those on cases based Puerto Rican II “go[ing] law and further than” most other Fuentes, As in Jimenez 807 F.2d at 243- Elrod/Branti, interpretations Mendez-Palou, and 813 F.2d at “are conclusive as to the state of the apply legal the standards to the facts Rodriguez Rodriguez, law.” particular the case insofar as they are in dispute. significant We find here no Indeed, Puerto Rico’s might dispute to those characteristics upper-level job protection have found position Regional Director that political discharge particularly difficult to set Ques- forth a Job Classification predict of Puerto Rico’s own civil tionnaire sent to the Puerto Rico Personnel system service which classifies (for purposes deciding Office whether jobs such as those in here as the is a position); “po- “trust” the or positions, “confidential” posi- “trust” sition trust” classification that PBA the tions outside the career civil service. Com- prepared in 1976 and filed Di- with the permits monwealth law the Central Office rector of the Central Office for the Admin- of Personnel Administration exempt no istration of Personnel of the Common- positions per agency more than 25 from the wealth; organization and an ap- chart that system, using career as criteria whether pears in the specific, record. To be more the involves “formulation of poli- particular the undisputed matters that are cy,” 1350, 1351(3) P.R.Laws Ann. tit. §§ and determine appeal the outcome of this (1980 Supp.1986), “[djirect & or services to following: are the head agency or subhead of the which

require high degree personal creating statute the PBA defines trust.” Bylaws: “providing] P.R. Personnel its lodging Areas duties as Essential facilities schools, Principle, the Merit 5.2 Appel- for and ‘Health Social Welfare § 3,729 Facilities', offices, have us courts, lants told quarters, out ware- 162,387 houses, are in the “trust” “confi- shops physical and other facilities (of Commonwealth, dence” service which the department, new Common- of the any adquisition tions of materials municipality.” instrumentality or agency, [sic] equipment, ect. (Supp.1983). tit. [sic]. Ann. P.R.Laws § any Carry duty other related trust positions of 2. The itemization requested____ Re- PBA the PBA defines the prepared by Prepare yearly budget functional follows: responsibilities gional Director’s existing needs based respon- have the Directors by the for the revision Conservation De- administration, supervi- sibility for partment approval by and final the Ad- Au- sion, inspection direction period- any other ministration Office and construction. projects under thority’s may report arise. ic coordinate, direct, super- Therefore comprised Appendix at activities Record inspect the vise and cycle in construction in all the [their] organization 4. The shows the table advise Region. Offer technical [sic] “Auxiliary regional under the Exec- offices charge of the different engineers who, Operations Area” utive Director responsible Are also projects. turn, reports to the Office of Executive administration, supervision and direction Director, is, turn, responsible ser- and conservation of the maintenance Board Directors. buildings in Authority’s vices agency’s These facts indicate that supervision phase region. The [their] might is of sort that well mission involve exe- of contracts also includes service political process. Its Au- agencies and the cuted with duties, least, responsibility include *5 Centers, aswell thority’s Government care and maintenance build- Authority carries which those Rico, ings throughout including Puerto They certi- companies. also private with facilities, schools, and welfare facili- health offer technical payment. Also fy their responsibilities ties. Its include Auxiliary Executive to the advise [sic] work, type repair, but also the custodial regards the construction to Director reconstruction, and conservation of build- for the Au- programs and conservation Where, how, govern- and ings. when the re- buildings respective in their thority’s repair will or reconstruct ment buid- representatives gions. Are the official ings, priori- which will have which towns Di- Authority its Executive ties, spent, to be money when and where regards to regions in their rector may well be matter considerable inter- munic- relationship to be with including government politi- est to officers, repre- other Government ipal Thus, agency’s leaders. mission cal ” general public. and the sentatives “potentially one that concerns at least Appendix Record at issues; job charged and the of an politically “potential- manager is general questionnaire 3. The classification ” “potentially concerned with what ly” supervis- Regional Director states that agency’s mission. concerns building including two ad- es 54 ” ministrators, supervisors, two conservation Similarly, there is at least a “modicum employees, nine con- personnel four clerical “policymaking responsibility” the Re- technicians, 37 conservation servation job within the gional Director’s Questionnaire, Classification workers. political could issues. subjects that involve It Appendix describes Record at others; supervises 54 his is a moderate- He as follows: Director’s duties agency; he high-level position within the ly of all work Supervision and coordination “Authority’s under con- projects directs main- struction”; representa- in the conservation and to be done he is the “official buildings phases “Authority of all tenance and its Executive tive[ ]” (32 buildings). region region regards “in to rela- Director” officers, municipal other Govern- supervise the administrative tions Direct general pub- representatives per- and the phases of ment in its tasks of the region, prepares budget relations, work, requisi- He lic.” clerical sonnel likely involving political a matter to be considerable inter- firing top policy- of a government official”). est to the elected and other making work there. officials who undisputed job descrip Since the factors, “potentially” These least job tions “potential indicate that at least signifi make Director’s ly” concerned of partisan political matters respect cantly in different interest and involved least a “modicum” from those that courts held volvement have policymaking responsibility, the defend i.e., constitutionally protected, grader, road “qualified immunity”. ant is entitled to bailiff, bookkeeper, deputy city court court Mendez-Palou, 813 F.2d at 1259. As we clerk, sheriff, deputy supervisor aof out, however, previously pointed we ex office, Appendix, branch an auditor’s see press no view about whether this waiters, cleaning people, and a director of (after “Regional Director” re trial in services, Rios, Vazquez su domestic see reinstatement) spect will turn out to fall pra. The enumerated factors make the outside, within, excep Elrod/Branti’s somewhat more like those in which we judgment tion. The of the district “qualified immunity” held have exists. the issue Colon, (trans supra v. Roure Hernandez lator); Quintana Anselmi, (Re supra Reversed. gional Right Employment Director for Administration); Alvarado v. So Raffucci (Social Zayas, supra nia Services Secre APPENDIX Colon, tary); Vazquez Rios Hernandez cases courts have held (editing supra governor’s press assistant protection there is constitutional include: office; Executive in Office of Grimes, (7th Meeks v. Cir. Affairs); Cultural Rosado supra bailiff); (city court Taylor, Horton v. Director, (Regional Department of Social (8th Cir.1985) (road grader); Services; Statistics, Director of Bureau Dinaso, Grossart v. Planning Program Economic and Social Cir.1985) (bookkeeper); Bosley, Barnes v. Board; Planning of Bureau *6 (8th Cir.1984) 745 F.2d 501 (deputy court Use, Physical Consultation on Land Plan- clerk), denied, 1017, cert. 471 U.S. 105 Board); ning Program Planning of Mendez- 2022, (1985); S.Ct. 85 L.Ed.2d 303 Jones v. Rohena-Betancourt, supra (Di Palou v. Dodson, (4th Cir.1984)(depu 727 F.2d 1329 of rector Administration for Environmental sheriff); ty Pruitt, DeLaCruz v. 590 Board; Quality Assistant F.Supp. (N.D.Ind.1984) (supervisor 1296 of Services, Special Department Agricul of office). branch of auditor’s ture; Deputy Spe Executive Director for cases which the courts have found Affairs, Aqueduct cial and Sewer Authori protection (as no constitutional of ty); Monge-Vazquez v. Rohena-Betanc (3d Trench, include: Brown v. F.2d 787 167 ourt, (Director supra of of Office Edu Cir.1986) (county’s assistant director of Relations, Community cation and Environ information); Board; City Tomczak v. Quality Director, mental of (7th Cir.) (first Chicago, depu 765 F.2d 633 Resources); Department Natural Rodri water), ty department commissioner of guez Munoz, Rodriguez v. Munoz supra denied, 946, 106 313, cert. 474 (Regional U.S. 88 Right Director S.Ct. to Work Ad (1985); L.Ed.2d ministration); 289 De Shakman v. Demo Izquierdo Abadia v. Mora, (Executive Organization cratic 722 supra County, Cook Quality Director of (7th Cir.) (superintendent F.2d 1307 Program); Choudens, Control of em De 801 cf. (no district), ployment Chicago park grant F.2d 10 abuse of discretion cert. denied, 916, preliminary injunction 464 U.S. 104 78 where evidence (1983); “essentially Petka, shows provider of ac L.Ed.2d 258 Livas 711 v. technical, Cir.1983) (assistant counting (7th services and F.2d 798 financial state’s court) Ranck, (quoting attorney); information” district but v. Mummau recognizes curiam) (3d Cir.1982)(per (assistant this court “closeness a case district

17 that this objected I have before watered- Branti creates a “dragnet down version of Bond, 542 Sweeney v. 669 F.2d attorney); position governmental can from which no denied, 459 cert. Cir.) (fee agents), (8th “[politicians precisely escape,” because 143 74 L.Ed.2d 103 S.Ct. disagree potentially anything can (3d Marshall, 517 (1982); 660 F.2d Ness Rosado, F.2d everything.” 813 Cir.1981) solici and assistant (city solicitor applied, sug- As this ad-hoc non-standard Painter, 653 F.2d tor); Nekolny v. gests that the law unsettled until the Cir.1981) fact whether (question of itself, is, Regional policymaker), coordinator senior citizens’ Aguadilla Region, PBA for the has denied, 102 S.Ct. rt. 455 U.S. ce litigated before the courts. been federal Committee to (1982); go unwilling this court has been Even Rights First Amendment Protect the rights far in civil cases. In fact Department Agricul Employees recently ruled other- Court (D.C.Cir. Bergland, ture — Creighton, wise. See Anderson v. 1979) (state Home directors of Farmers U.S.-, 3034, 97 L.Ed.2d 523 Administration, directors of state executive Ochs, Hall v. (1987); Conservation Agricultural Stabilization Cir.1987). Court, In par- denied, Service) 447 U.S. (pre-Branti), cert. ticularizing meaning “clearly estab- (1980); law, lished” found: Cohalan, (E.D.N. F.Supp. Ecker v. right must suffi- contours be Brun commissioner); Y.1982) park (deputy ciently clear that a reasonable official States, (S.D. F.Supp. 223 v. United ton doing he would understand that what 1981)(state of Farmers Home director Ohio right. say This is violates that not to Administration). protected by official action is very unless the action TORRUELLA, (dissent- Judge Circuit previously has been held un- ing). lawful, say is to my ex views I continue to adhere preexisting law the unlawfulness must Quintana v. An in Pérez Gracia pressed apparent. be (dis selmi, (1st Cir.1987) F.2d — at-, S.Ct. at 3039. senting); Rosado F.2d it was if established” (same); (1st Cir.1987) Jiménez and in the time that certain domestic employ- Gaztambide, F.2d v. Torres Fuentes performing ministerial duties could not ees (1st Cir.1986), Vázquez reasons, Rios fired for be U.S.-, 95 L.Ed.2d 496 Colón, v. Hernández (1987) (same). *7 Cir.1987), discharge in illegality today finds that func- majority apparent case, too, should have been Buildings Authority tion of the Public PBA’s is to in 1985. The main function (“PBA”) potentially” least one that is “at infra- maintain and renovate politics, and that the partisan analogous concerns structure. The Regional Director “at least involves company private janitorial service making responsibility.” policy modicum of whose functions do stimulate sector plain- majority concludes that Because the And the defendant has political discord. discharge in 1985 did not violate tiffs proving met the burden of law, is im- position, manager defendant established” damages janitors, requir- action. mune from a Section one Puerto Rico’s Méndez-Palou, ante quoting per- its See ing political affiliation for effective (a enjoys upon The uncontroverted facts F.2d at 1259 defendant formance. majority relies show that it unless was particular position Regional Director offers “technical advice” regards and conser- protect- to the construction constitutionally were at issue ... within projects ed). vation of contracts with oversees the execution government agencies. See ante Regardless his bombastic title and responsibilities, supervisory

minimal strictly by of this measured

duties criteria, professional much like

technical or technocrat in de Choud administrative Bank, Development ens v. Government (1st Cir.1986),

U.S.-,

(1987), party for whom no affiliation per I

prescribed. compare the work When present appellant

formed which we refused de Choudens partisan political considerations

allow applied vice-president to a

prevail as senior Bank, Development I

of the Government are but one

cannot but conclude step away openly reversing not

small

only that decision also Branti. respectfully

I dissent. SERVICES,

FARM CONSTRUCTION

INC., Plaintiff, Appellant, Fudge,

Stephen D. FUDGE and Gail L.

Defendants, Appellees.

No. 87-1032. Appeals,

United States Court of

First Circuit.

Submitted June

Decided Oct.