792 F.2d 1187 | 1st Cir. | 1986
Lead Opinion
This is our second installment in a saga of Puerto Rican politics following the gubernatorial election of November 1984. See Jimenez-Fuentes v. Torres Gaztambide, 779 F.2d 765 (1st Cir.1985) (since withdrawn and decision en banc now awaited). Plaintiff Luisa de Abadía, a member of the party (PNP) ousted in that election and former Executive Director of the Quality Control Program of the Department of Health, seeks monetary damages and injunctive relief under 42 U.S.C. § 1983 against Luis A. Izquierdo Mora, the recently appointed Secretary of the Department of Health, Guillermo Irizarry, the Administrator of the Department, and Sonia I. Colon Robles, the Department’s Personnel Director. She alleges that defendants violated her civil rights when they demoted her to a “career” position as a nutritionist within the Department. Specifically, she claims her demotion was due to her political affiliation, in violation of the strictures of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Defendants moved for summary judgment, arguing that the qualified immunity to which, as public officials, they were entitled, see Harlow v. Fitzgerald, 457 U.S. 800,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), precluded recovery in damages against them, whatever the outcome of the injunctive claim. The district court denied the motion, and defendants appeal.
Strictly, defendants filed two motions. The court disposed first of their motion to delay discovery until the motion for summary judgment was acted upon. In denying this, by written order, the court said that although it might agree that officials might be entitled to a qualified immunity in claims for damages in a proper case,
“this action is ... not an action seeking damages, but is also an action for injunctive relief against which the defendants may not be entitled to a claim of qualified immunity. Generally, the immunity doctrine is only applicable to actions for damages and cannot be employed in suits seeking declaratory or injunctive relief. Mitchum v. Foster, 407 U.S. 225 [92 S.Ct. 2151, 32 L.Ed.2d 705], Thus, the issue of immunity is not as clear cut as defendants argue in their motion to stay.”
Our thought that the court was here confusing the making of an early ruling as to immunity with the right to an immediate appeal, where both damages and an injunction were involved, is confirmed by its later, oral, ruling denying the motion for summary judgment. When the parties discussed the merits of that motion, and the court stated it would deny it, it added, “It is not appealable, anyway.” The following then occurred.
Mr. Ramirez: It is appealable if it denies qualified immunity, that’s one of the cases we cited on the motion.
The Court: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things.
Mr. Ramirez: It includes qualified immunity.
The Court: You raised it, but in an injunction I am not so sure that qualified immunity applies or not, as I . said in my order denying your request to stay.
Mr. Ramirez: Okay so Your Honor is denying then the—
The Court: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment.
This would seem to raise two points: whether it was correct to deny the motion for summary judgment, and whether an incorrect denial would be appealable.
We consider first whether denial of summary judgment on a claim of qualified immunity which the Court held in Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 86
As the Court said in Mitchell, qualified immunity is more than an immunity from money damages; it is “an immunity from suit ... [which] is effectively lost if a case is erroneously permitted to go to trial.” Id. at 2816 (emphasis in original). This is so, the Court said, because,
the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service.” Id. at 2815 (quoting Harlow, ante, 457 U.S. at 816, 102 S.Ct. at 2737).
Plaintiff argues that because defendants must proceed to trial in any event on the injunctive claim, there is little purpose in allowing them to avoid trial on damages. Plaintiff would quote Bever, ante, 724 F.2d at 1086-87, to the effect that,
[defendants remain] the principal defenders of the state’s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at trial. Whether or not they are immune from damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damages claims cannot avoid the diversion of their attention from official duties which the litigation will occasion.
In these circumstances, the question whether a denial of the immunity claims is appealable would appear to have little effect upon the willingness of responsible persons to serve in public office.[2]
With due respect to the Fourth Circuit, we do not follow its reasoning. Its approach assumes that, for a public official, the threat of suit in his individual capacity is no worse than the threat of suit as representative of the state, and that the burdens of defending are no more onerous for the former than the latter. Although we recognize a public official’s obligation to defend a suit brought against him in his public capacity, the emotional, and perhaps physical, responsibility is not as great. “[T]he fear of being sued and held personally liable for damages is a far cry from a suit for reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties.” Bever, ante, 724 F.2d at 1091-92 n. 4 (Hall, J., dissenting). The threat may well include punitive, as well as actual damages. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473-74, 64 L.Ed.2d 15 (1980). Even if the actual time spent on the case away from his ordinary responsibilities were the same whether the damages claim was in or out, the official’s energy may be
Finally, the Fourth Circuit’s approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune.
In sum, we agree with the dissent in Bever, and with Tubbesing in all respects. We hold that an interlocutory appeal lies from the district court’s denial of summary judgment on a claim of qualified immunity from damages liability, even though a petition for injunctive relief is also pending.
Perhaps because of its erroneous views on the availability of an advance ruling on qualified immunity, the district court did not discuss whether defendants had made a sufficient showing of immunity. Instead, it denied summary judgment on the basis of “clear issues of fact,” but made little showing as to their extent beyond reference to the “controversy whether Mrs. Abadía was or was not a confidential employee, what her duties were ... [tjhat’s why I cannot decide by summary judgment.” Obviously if there was a determining question of fact regarding defendant’s qualified immunity defense, denial of the motion was correct. See Fernandez v. Leonard, 784 F.2d 1209, 1214, note 2 (1st Cir.1986).
There is a serious shortage of record. In their proposed pretrial order, the parties listed four disputed matters: 1) whether plaintiff’s position was “confidential”; 2) whether she was terminated for political reasons; 3) whether her position was “policy making”; and 4) whether “political loyalty is an appropriate requirement for the performance of the office.” Not all of these, however, are factual disputes upon which a determination of this motion for summary judgment depends.
To start with Nos. 1 and 3, Branti makes it clear that these classifications do not, per se, excuse political demotions.
The first question is what is meant by “clearly established.” We consider it to be something less than requiring the public official to show that the principle of law did not exist, or there would be little left; there would be few cases on which officials could succeed. Only rarely do legislatures or courts introduce or change whole principles. More often, the process of change involves a sharpening of lines in the law’s grey areas, absent which there could reasonably be excusable mistakes. The case law supports this broad interpretation. See Harlow, ante, 457 U.S. at 815-19, 102 5. Ct. at 2736-39; Procunier v. Navarette, 434 U.S. 555, 560-65, 98 S.Ct. 855, 859-61, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 315-22, 95 S.Ct. 992, 997-
[T]he public interest requires decision and action____ Public officials ... who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity ... is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error than not to decide or act at all. Scheuer, ante, 416 U.S. at 241-42, 94 S.Ct. at 1689.
The good faith standard is the Court’s attempt to accommodate this need for discretionary action in areas of uncertainty with the protection of individual rights. “The official cannot be expected to predict the future course of constitutional law, but he will not be shielded from liability if he acts ‘with such disregard of ... clearly established rights that his action cannot reasonably be characterized as being in good faith.’ ” Procunier, ante, 434 U.S. at 562, 98 S.Ct. at 860, (quoting Wood, ante, 420 U.S. at 322, 95 S.Ct. at 1001) (citations omitted). These are concerns that apply just as forcefully to refinements or clarifications of existing doctrine as to radical changes of direction. The cases are also clear that the limits of good faith vary with “the scope of discretion and responsibilities of the office and all the circumstances as they appeared at the time of the action.” Scheuer, ante, 416 U.S. at 247, 94 S.Ct. at 1692. Where, as in this case, the official’s responsibilities are broad, he must be afforded a correspondingly broad range of discretion. While employment decisions may not appear initially to be the type of critical actions for which wide discretion is appropriate, at least at the higher levels, they are essential to the effective implementation of important government policies. See Elrod, ante, 427 U.S. at 367, 372, 96 S.Ct. at 2686-87, 2689.
On this basis, the question becomes, not whether defendants were in fact correct in believing party affiliation to be an appropriate requirement for plaintiff’s position, but whether, viewed objectively, they were reasonable in so believing. If this were an issue of subjective good faith, there might always be a question of fact; it is difficult to think there could ever be summary judgment. However, in the case of objective good faith, that a reasonable man in defendants’ position could have believed his conduct to be warranted, Malley v. Briggs, — U.S. -, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), may be a purely legal question, Mitchell at 2816-17 n. 9, so that it may be possible for an appellate court to rule that a defendant was reasonable as a matter of law. In that event, no purpose would be served by remanding to the district court. We believe this is such a case.
We start with the fact that Elrod and Branti marked a substantial change in the law. That “party affiliation be an appropriate job requirement” is much easier to say than to apply to the wide number of factual situations bound to occur in any government employing a large number of individuals. In the present state of the law, whatever may be the ultimate resolution on the merits — an issue not before us — of a particular case, may frequently not be easy to say in advance. Certainly at the top there must be political as well as other guidelines for the conduct of the Commonwealth’s Department of Health. Plaintiff, in accordance with governmental regulations, had executed her own official job description as Executive Director of the Department of Health. Plaintiff’s own re
[I]t is ... clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.
Plaintiffs affidavit that her true employment was mundane, only, non constat that she had prepared a quite different job description, ante, on the asserted basis of her actual performance,
We would add that an official should have at least a qualified right to regard an office as embracing the characteristics normal to its nature. If, in fact, the preceding governor withheld the duties embraced in plaintiff’s job description this should not foreclose his successor from naming a replacement with the higher duties. As the court said in Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir. 1985),
[The] focus is on the “inherent powers” of the office, not what any individual officeholder actually does.
Elrod and Branti require examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office. Ness v. Marshall, 660 F.2d 517, 522 (3d Cir.1981); Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591, 593 n. 4 (1st Cir.1977); Mummau v. Ranck, 531 F.Supp. 402, 405 (E.D. Pa.1982), affd, 687 F.2d 9, 10 (3d Cir. 1982). Thus, if an officeholder performs fewer or less important functions than usually attend his position, he may still be exempt from the prohibition against political terminations if his position inherently encompasses tasks that render his political affiliation an appropriate prerequisite for effective performance. In this court’s reiteration of the Branti formulation, we emphasized the functions of the office involved, not the officeholder: “The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decision making on issues where there is room for principled disagreement on goals or their implementation.” Nekolny v. Painter, 653 F.2d 1164,1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The unarticulated purpose behind this approach seems to be two-fold: first, to resolve the issue entirely in one proceeding, thereby relieving the courts of the burden of having to reexamine a certain position every time a new administration changes the mix of responsibilities bestowed upon the officeholder; and, second, to provide certainty to litigants.
Tomczak v. City of Chicago, 765 F.2d 633, 640-41 (7th Cir.1985). Therefore barring some radical transformation that goes to the core of the nature of the position, the district court need not concern itself with what past or present administrations have done with the office.
Insofar as there is a disputed issue concerning the Manual, it involves the differing interpretations of Tubbesing and the Board. There is no dispute that the manual was in effect and no dispute about the contents of the Manual. The only question involves its interpretation, and this is a question for the court. Rather than precluding summary judgment, the fact that the application of the Policy Manual [to the directors] is disputed merely emphasizes that the law at the time of the conduct complained of was not clearly established. Even considering the evidence in the light most favorable to Tubbesing, and giving her the benefit of all reasonable inferences, we cannot conclude that there is a genuine issue of fact concerning whether Tubbesing had a “clearly established” right to continued employment.
So viewed we consider that, as a matter of law, defendants could reasonably believe, although on the merits they may ultimately prove to be mistaken, that the position of Executive Director of the Quality Control Program was one that allowed substantial responsibility for the development and implementation of high level policy as detailed in the job description, n. 3 ante, requiring a political outlook compatible with the Secretary’s; in short, that it was a position for which political affiliation was an appropriate requirement. Particularly it should not lie in plaintiff’s mouth, on the issue of defendants’ good faith, to say that they could not regard the job as being what she herself had described it to be. (See n. 5, ante.)
In sum, we are presently concerned not with the correctness of defendants’ determination, on the one hand, nor their subjective state of mind on the other, but of the “objective reasonableness” of their conduct. See Floyd v. Farrell, 765 F.2d 1, 4 & n. 1 (1st Cir.1985). We cannot say that the incorrectness of their conduct was clearly established. Harlow demands not prescience, but objective good faith. In some cases the application, vel non, of Elrod-Branti may be clear; in others it will be sufficiently fraught with uncertainty that an official could not be faulted for failing to apprehend.
We are not without sympathy for district judges who would like full guidance in this difficult area, but we must hesitate to write a textbook providing resolution of all future questions. For now we merely hold, finding appellants to be at least reasonable in believing the law was not clearly established, that they are entitled to qualified immunity from suit. We therefore vacate and remand with directions to grant summary judgment on the issue of personal liability and to dismiss the counts as to defendants’ personal damages.
. Conceivably there is a further question whether the court misspoke itself in the second paragraph. Qualified immunity is, of course, no defense to equitable relief. That is the cause of our problem.
2. The Fourth Circuit suggested that the interest in prompt results also militates against allowing these appeals: "[Defendants] might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.” Id. at 1087. This is a red herring, totally irrelevant to the overriding concern, expressed in Harlow and Mitchell, for the official’s right to avoid trial, and not merely to obtain an expeditious resolution of his immunity defense.
. With respect to issue No. 1, it is not apparent how it could be thought that plaintiff was other than a "confidential employee” as defined in the Puerto Rico Personnel Law. See P.R.Laws Ann. tit. 3, § 1350 (1978 & Supp.1984).
. Harlow is only the most recent pronouncement on qualified immunity. The doctrine has roots that antedate all of these cases, which simply developed its contours. Harlow’s significance lies in its rejection of the subjective good faith prong of the doctrine. 457 U.S. at 817-18, 102 S.Ct. at 2737-38.
. See, e.g.,
"2. Advise the Secretary, Governors’ Aids, and Legislators in the establishment of the philosophy, public policy, goals and objectives related to the health services.
“7. Recommend drafts of bills and bills directed to implement, amend or derogate provisions allowing for the development of the functions assigned to the Program; discuss them; process for the consideration of the Secretary, the Governor or the Legislature and give follow up to determine the action taken."
. "Detail the work you perform in the order of importance of the different tasks, starting with the most important____”
Our dissenting brother’s reference to plaintiffs separate count for damages under the Commonwealth statute, for which pendent jurisdiction is asserted, is to a matter not presently before us. However, the writer of this opinion, the matter having been raised, would call the district court’s attention to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67.
Concurrence Opinion
Chief Judge (concurring).
I fully join in Judge Aldrich’s opinion for the court.
Because of Judge Torruella’s extensive dissent, reflecting his view that there is a triable issue of fact underlying the claim of qualified immunity, I think it may be useful to recall what movants (the defendants) were required to establish in order to obtain summary judgment, and to restate what the respective parties in fact presented.
As moving parties for summary judgment, defendants had the burden of show
In support of their motion, defendants submitted a certified copy of so-called classification questionnaire signed by plaintiff and the Secretary of Health. They asserted that there was no genuine issue of material fact that plaintiffs functions and duties were those listed in that document.
Plaintiff filed an opposition to the motion. She did not dispute that the certified document presented by defendants correctly portrayed the official job description pertaining to plaintiffs position, but she argued strenuously that it did “not state or show that party affiliation is an appropriate requirement for the effective performance of th[e] position.” She also cited to a number of other documents that had already been made a part of the record, in particular to affidavits from two of the plaintiffs predecessors-in-office and the former Secretary of Health averring that (1) while in office, plaintiffs predecessors did not formulate public policy or implement the politics of any given political party; (2) politics was not a factor in the discharge of their functions; and (3) they were not members of the same political party as the then-Secretary of Health. Plaintiff further referred to the affidavits filed by defendants Izquierdo-Mora and Irizarry, and argued that neither one of these affidavits contained “any statement to the effect that de Abadia’s position was a policy making position or that party affiliation [was] an appropriate requirement for the effective performance of the position.” Notwithstanding the foregoing opposition, I believe that defendants succeeded in showing there was no material issue of disputed fact that would preclude an award of summary judgment for defendants on the limited question of qualified immunity, because (1) even assuming that the averments of her predecessors and the former Secretary of Health would be relevant to a merits inquiry, a reasonable person (as Judge Aldrich’s opinion for the court shows) could have disregarded these matters in assessing what the “inherent powers” of her office were; and (2) plaintiff implicitly concedes that the job description submitted by defendants with their motion reflects the official duties of her office, though contending that as a matter of law such duties do not make party affiliation an appropriate prerequisite for the job.
Whether, as a matter of law, these duties do or do not make party affiliation an appropriate prerequisite for the job, seems to me to be a close and difficult question. Although the law seems clear at either end of the Elrod-Branti spectrum, not enough precedent dealing with various upper-level governmental positions in the middle of the spectrum has yet emerged to enable one to easily classify such a position. See Ness v. Marshall, 660 F.2d 517, 520 (3d Cir.1981) (“Guidance from the Supreme Court as to when party affiliation may be ‘appropriate’ is limited to the facts of the Branti case and to a few examples offered by Justice Stevens in his Branti majority opinion.”). Subtle distinctions must be drawn in determining whether a position that occupies this troublesome middle tier falls within the Elrod-Branti exception to the first amendment prohibition against political firings.
For these reasons, I think defendants could reasonably have believed that the federal law was not clearly established against their actions. While the Puerto Rican courts had indeed issued their own opinions, based mainly on the Commonwealth’s Constitution and laws, the matter before us turns on federal law and, here, I am considerably less clear than is my colleague, Judge Torruella, as to how that law affects offices like this. Our own court is holding an en banc hearing in respect to two recent employment demotion/discharge cases simply because of our own concern over how the United States Supreme Court decisions are meant to be applied. Since the only question before us is what a reasonable person would have known as to the state of the law, and not what the actual answer is in this case, I agree with Judge Aldrich that defendants should be immune from damages by virtue of their qualified official immunity, whatever the eventual outcome of plaintiff’s claim for restoration of her job with back pay. And I emphasize, what Judge Aldrich has said, that the immunity issue is not whether these defendants were subjectively reasonable in their opinion; it is enough that, on the record, their opinion could be found to be objectively reasonable.
. See, e.g., Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982) (Weinstein, CJ.) ("Among the indicia that locate a job along the spectrum between policymaker and clerk are: relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials and responsiveness to partisan politics and political leaders.”).
. See, e.g., Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.) (party affiliation was an appropriate prerequisite for position of First Deputy Commissioner of the Department of Water for the City of Chicago), cert. denied, — U.S.-, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1310 (7th Cir.) (per curiam) (party affiliation was an appropriate prerequisite for position of Superintendent of Employment for the Chicago Park District), cert. denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983); Mummau v. Ranck, 687 F.2d 9 (3d Cir. 1982) (per curiam) (party affiliation was an appropriate prerequisite for position of Assistant District Attorney). In this connection, it is significant that, with the exception of the Supreme Court’s decisions in Elrod and Brand, the only cases which plaintiff cites in support of her argument that, at the time of her demotion, federal law was "clearly established” against the defendants' right to demote her are two decisions of the Puerto Rico Supreme Court, only one of which expressly purports to be based on a construction of federal as well as of Puerto Rico law.
Dissenting Opinion
(dissenting).
This appeal presents two separate issues: (1) whether this court has jurisdiction to entertain this appeal, and if it does, (2) whether appellants are entitled to qualified immunity from suit. Because I cannot in good conscience agree that this court has either appellate jurisdiction over this controversy, or that appellants have a valid claim to immunity, I respectfully dissent.
I. Appealability
The issues presented by the appealability question are twofold. The first is raised by reason of the nature of the action taken by the district court, which was a denial of a summary judgment motion on the ground that a genuine dispute existed over a material issue of fact. For reasons set forth more fully below, I do not believe the district court’s decision was a “conclusive,” and hence, appealable decision. Moreover, I believe that the majority, contrary to the rules governing summary judgment, draws factual inferences in favor of the moving party, rather than to the benefit of the party opposing the motion. In short, I believe the majority improperly disregards the factual dispute below, and in a usurpation of the functions of the trial court and jury, decides both legal merits that were not addressed below, and resolves contested factual matters that, under the rules governing summary judgment, should be left to decision by the fact finder, and not by this appellate tribunal.
The second issue that precludes appellate jurisdiction is the nature of the issues raised in the court below; namely, a joint claim for monetary damages and equitable relief. The majority decides that, while trial will continue as to equitable relief, an interlocutory appeal can be allowed on qualified immunity as to damages. For reasons more fully set forth below, I do not share the majority’s willingness to depart
A. The nature of the action taken by the district court
At the risk of being pedantic, I should commence by restating the general rule of federal appellate jurisdiction, one which at times seems honored more in breach than in compliance, limiting that “jurisdiction [to] appeals from final decisions of the district courts.” 28 U.S.C. § 1291. This provision manifests “a firm congressional policy against interlocutory or ‘piecemeal’ appeals,” Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977), and “is the dominant rule in federal appellate practice.” Flanagan v. United States, 465 U.S. 259,104 S.Ct. 1051, 1057, 79 L.Ed.2d 288 (1984). It follows from this rule, that for an interlocutory decision to be appealable, the district court must render a ruling which “conclusively determine[s] the disputed question.” Mitchell v. Forsyth, — U.S. -, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-2458, 57 L.Ed.2d 351 (1978). Thus, the question appealed from must involve a classical Rule 56 issue of law, in which there are no material questions of fact which are disputed. Mitchell v. Forsyth, supra. To belabor the obvious, it follows that summary judgment cannot be granted where there are material questions of fact in dispute.
The first ground for our lack of appellate jurisdiction in this case is that, by virtue of the nature of the action taken by the trial court, it failed to make a “conclusive” determination. The district court did not rule on the merits of the qualified immunity question but rather decided that it could not so rule because there were contested material questions of fact. The following dialogue took place between the district judge and appellant/defendant’s counsel:
Tr. 7 THE COURT: I think that there are clear issues of fact here which must be resolved, whether by the Court or by the Jury.
It is not completely without controversy whether Mrs. Abadía was or was not a confidential employee, what her duties were.
Tr. 8 RAMIREZ: ...
The point is what are the duties of the position, and that is clear from the documents that we presented in support of our motion, and that simply cannot be controverted.
Tr. 9 THE COURT: She has controverted them, as I understand it, that’s why I cannot decide by summary judgment.
Tr. 11 THE COURT: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things.
THE COURT: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment.
Transcript of June 21, 1985 hearing.
If the district court was incorrect, and there were no material issues of fact pending, the proper outcome on appeal would be for this court to remand with instructions that the trial court decide the issues of law in the first instance. Harlow v. Fitzgerald, 457 U.S. 800, 819-820, 102 S.Ct. 2727, 2738-2739, 73 L.Ed.2d 396 (1982); see also Witters v. Wash. Dept, of Services For Blind, — U.S.-,---n. 3,-n. 5, 106 S.Ct. 748, 751 n. 3, 753 n. 5, 88 L.Ed.2d 846 (1986). Yet despite a recognition by the majority that “the district court did not discuss the merits of [the qualified immunity] issue” (opinion at p. 1190) and
The majority’s error is further compounded, in my view, by its disregard of the material factual dispute below (as recognized by the district court in denying summary judgment). To understand the nature of this factual dispute, and why the district court correctly regarded such dispute as precluding a ruling on the merits, it is necessary to examine the motion for summary judgment itself.
Appellant/defendants’ motion for summary judgment claimed two grounds for appellee/plaintiff’s dismissal:
If, as the majority concludes, authorship is a material fact, basic rules of summary judgment require that defendant-movant affirmatively plead (and establish) authorship as not in dispute. See Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977). Defendant-movant below, however, has made no such pleading, much less a showing. Nevertheless, according to the majority, even though authorship was not affirmatively alleged, the inference is apparently supposed to speak for itself.
The problem with the majority’s adoption of the above inference is twofold. First, the inference is by no means a foregone conclusion. From the nature of the “personnelese” language used, it is entirely possible that the job description was prepared by the personnel office, with plaintiff’s signature being a mere formality. Second, if inferences are to be drawn, the rules governing summary judgment are clear. Inferences are to be drawn against the movant, and in favor of the party opposing the motion. See Harlow v. Fitzgerald, supra 457 U.S. at 816 n. 26, 102 S.Ct. at 2737 n. 26 (1982).
Thus, plaintiff’s authorship is not only a critical factual premise, but it requires a critical inference by the majority opinion. This means, in effect, that in the face of ambiguous evidence, the majority has not only drawn inferences, but resolved them in favor of defendant-movant below. In my view, such a result not only verges on improper factfinding by an appellate tribu
Apart from authorship, the second factual dispute ignored by the majority relates to the powers of plaintiffs position and whether, given these powers, political affiliation was an appropriate requirement.
Under normal circumstances, it would appear that the affidavits of plaintiffs predecessors, when compared to the job description offered by defendant, present a dispute as to what the job is about.
I do not see the line between actual duties and inherent powers as indelible. Moreover, to the extent the majority today announces an inquiry that forecloses consideration of actual duties, even as evidence of inherent powers, I cannot agree to it. First, as a matter of law, judicial reliance on job descriptions as irrebuttable statements of inherent powers has occurred only in the context of statutory job descriptions, which is not the case before us. See Ness v. Marshall, 660 F.2d 517, 521-522 (duties of plaintiffs enumerated in city’s administrative code); Mummau v. Ranck, 531 F.Supp. 402, 405 (E.D.Pa.1982), affd, 687 F.2d 9, 10 (3d Cir.1982) (same). Second, as a matter of policy, I believe that where we do not have a statutory job description, today’s rule of per se veracity for job descriptions “on file” is, to say the least, a dangerous one, especially where, as here, no reliance on that job description has been pleaded or shown by defendants. See discussion post, pp. 1192-1193; see also Meeks v. Grimes, 779 F.2d 417, 420 n. 2, 423-424 (7th Cir.1985) (remand to district court because of insufficient and conflicting record on the “nature of the [employee’s] duties,” and because inherent powers is an issue for the trier of fact); Alfaro de Quevedo v. De Jesús Schuck, 556 F.2d 591, 593 n. 4 (1st Cir.1977) (nondispute over inherent powers premised on district court findings of fact, and job description not disputed or contested by plaintiff); Tubbesing v. Arnold, 742 F.2d 401, 406 (8th Cir.
Even accepting that the proper inquiry is not actual tasks but “inherent powers,” I still see a factual dispute as to the latter in the record. Under Rule 56, if the inherent powers of plaintiffs position are a material fact (as the majority concludes), defendantmovant below would have the burden of showing an absence of dispute as to that fact. Mack v. Cape Elizabeth School Board, supra. Given that defendant has made no such showing, his motion should fail, especially where the requirement of drawing inferences in the non-moving party’s favor reveals great ambiguity as to the actual inherent powers.
An examination of defendant-movant’s pleadings on the inherent powers issue only reveals a statement that political affiliation was appropriate, and an argument by counsel that the attached job description represents the inherent powers. No affidavit is provided (not even that of defendant Secretary) attesting to the critical factual issue of whether the job description accurately represents the inherent powers. Thus, if it is accepted, as the law requires, that inferences as to authorship and inherent powers must be resolved against defendant-movant, what is left is not a document authored by plaintiff but an allegation by defendant, never shown to be an uncontested factual dispute, that the job description indisputably represents the “inherent powers” of the office.
Plaintiff’s opposition to the motion, however, reveals quite contrary assertions as to inherent powers. As noted above, the affidavits of plaintiff’s predecessors, who served under opposite-party superiors, stated that the job was such that political affiliation was not an appropriate requirement.
A third material fact relevant to the majority’s conclusion is defendant-movant’s alleged reliance on the job description form as a basis of the discharge. In short, the holding today appears to be that, looking at the face value of the allegedly undisputed job description, defendant’s action (reliance on the job description), objectively viewed,
The problem with the majority’s presumption of defendant’s reliance is that nowhere in defendant Secretary’s affidavit, his discharge letter, or in the motion for summary judgment has a claim been made that he or any of the defendants relied on the job description form. Thus, we are back to inferences.
Finally, whether we regard the relevant facts as the actual tasks or the inherent powers, it is important to note that the parties themselves, including counsel for defendant/appellants, understood the facts to be in dispute. On June 18, 1985, three days before the court ruled on the motion for summary judgment, the parties filed a joint pre-trial order, signed by all counsel and approved by the court, in which they listed as:
“VI. CONTESTED MATERIAL FACTS
8. Whether the position from which plaintiff was separated is a policy making one.
4. Whether political loyalty is an appropriate requirement for the performance of the office.”
With this record before it, I cannot see how the district judge can be faulted for finding issues of fact to be present, and hence, for refusing to grant summary judgment on the merits. It is even more difficult for me to see how this court, on appeal, can find that there are no material facts in dispute without making inappropriate inferences, or without engaging in factual determinations itself.
In large part, the above discussion takes for granted the rule that, in the context of summary judgment, inferences should be resolved in favor of the party opposing the motion. However, because I do not wish this dissent to be read as a hyper-technical reliance on the rules, I would like to also point out the sound policy reason why, on the record before us, we cannot find the lack of a factual dispute. To do this, it is necessary to repeat the majority’s reasoning in so holding. In short, the majority appears to say that they are interpreting, as a matter of law, the face value of a job description (as the basis for a qualified immunity defense).
I have, in vain, searched for any authority lending even the slightest support to such a far-reaching and dangerous doctrine, one which would open the door to the most pervasive bureaucratic abuses and would leave public employees without the protection which the Supreme Court has emphatically sought to establish under Elrod v. Bums, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1975) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). I can think of no other case in which such a factual situation would not be subject to challenge. Moreover, I can imagine, without considerable effort beyond the facts of this case, a scenario where a job description is prepared, where an employee must sign the description as a condition of employment, where policymaking duties and prerogatives are ascribed to the position, and where all the parties know beforehand that such policymaking duties are not inherent powers of the office, and likewise, will not be performed. When the discharge occurs, the government executive could claim qualified immunity on the basis of that document, apparently irrespective of the true facts, and even without having shown reliance on its contents as the basis for his actions. Can it be reasonably argued that such a situation is immune from factual dispute, and accordingly, that it should receive a priori insulation from a fact finder’s inquiry? I think not, yet that may be the unintended consequences of today’s majority ruling.
B. The nature of the issues raised before the district court
The second reason for dismissing this appeal for lack of appellate jurisdiction relates to the nature of the issues raised below. The suit filed in the district court is one seeking damages and injunctive relief under 42 U.S.C. § 1983. Assuming, arguendo, that the district court decided the merits of the qualified immunity defense, the question then is whether there can be an interlocutory appeal from such a ruling under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This is an issue of first impression in this circuit, specifically left undecided by the Supreme Court in Mitchell v. Forsyth, supra 105 S.Ct. at 2812 n. 5. The Court there held that similar orders were appealable in actions for damages. In the case of mixed actions seeking both damages and injunctive relief, however, I believe that there are good legal and policy reasons for not permitting an interlocutory appeal of the qualified immunity issue.
We obviously need not restate our previous reference to the general rule of federal appellate jurisdiction, embodied in 28 U.S.C. § 1291, prohibiting interlocutory appeals. Ante, p. 1196. A narrow exception to this rule, carved out by judicial exception, is the Cohen collateral order doctrine. The Cohen doctrine permits interlocutory appeal of “that small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, supra 337 U.S. at 546, 69 S.Ct. at 1225-1226. The Cohen doctrine has been refined to require that the trial court order conclusively determine the disputed question, that it resolve an important issue completely separate from the merits of the action, and that it be effectively unreviewable from final judgment. Coopers & Lybrand v. Live-say, supra.
In support of a narrow interpretation of the Cohen collateral order doctrine, the Supreme Court has stated that there are strong policy reasons against permitting interlocutory appeals:
“[preserving] the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation [and reducing] the ability of litigants to harass opponents and to clog*1202 the courts through a succession of costly and time-consuming appeals.”
Flanagan v. United States, supra 104 S.Ct. at 1054.
Due to these policy reasons, courts have consistently held that the collateral order doctrine, and the attendant right of interlocutory appeal, should be narrowly construed. See, e.g., Powers v. Lightner, 752 F.2d 1251, 1255 (7th Cir.1985); Morgan v. Kopecky Charter Bus Co., 760 F.2d 919, 921 (9th Cir.1985); Yakowicz v. Pennsylvania, 683 F.2d 778, 783 (3d Cir.1982); Bachowski v. Usery, 545 F.2d 363, 371 (3d Cir.1976).
As previously indicated, among the narrow class of permissible interlocutory appeals are rulings denying immunity to public officials in damage actions. Thus, interlocutory appeal may be had to a ruling denying qualified immunity in actions for damages, “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, supra 105 S.Ct. at 2817. The reasoning behind this exception is clear: “the essence of ... immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.” Id., 105 S.Ct. at 2815. To support its conclusion, the Court in Mitchell demonstrated a twofold concern. First, it noted that the consequences of not permitting such interlocutory appeal implicated the public’s interest in being served by officials who acted with independence and without fear of being subjected to liability for money damages. Second, the Court stated that the unavailability of such relief exposed officials to additional burdens as a consequence of having to stand trial — “distraction ... from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. (citing from Harlow, supra 457 U.S. at 816, 102 S.Ct. at 2737).
This reasoning is not applicable where, as in the present case, resolution of the immunity question, in the context of a joint cause of action for damages and equitable relief, does not conclusively terminate the suit. In short, because plaintiff below included claims for equitable relief, and because such claims are not subject to the qualified immunity defense, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), the trial below will proceed. So, the denial, or for that matter, the granting of immunity from the damages action does not end the official’s continued participation in the law suit. The parties will continue to litigate substantially the same controversy, with only the remedy, one equitable and the other monetary, being at variance. Since the factual and procedural setting will not be essentially different regardless of whether only the equitable issues are left or whether both the equitable and damage questions remain subject to discovery and trial, the officials cannot be benefited by the allowance of a fractioned appeal.
On the other hand, the policy reasons against expanding the collateral order doctrine are, if anything, even stronger now than when 28 U.S.C. § 1291 was enacted. The appellate docket continues to increase dramatically. In the year ending June 30, 1985 there were 33,360 appeals filed in the twelve courts of appeal excluding the Federal Circuit, as compared to 31,387 the previous year, a six percent rise in filings.
The majority does not regard its expansion of the availability of interlocutory appeals as unnecessary. Indeed, the majority adheres to one of the policy prongs of Mitchell, that apprehension of personal liability for damages impairs good government. With all due respect, the majority’s concern is in my view quixotic. I say this because the public executive’s apprehension as to money damage liability has been mooted by the Puerto Rico legislature. In short, Puerto Rico law provides government officials such as defendants below not only with a subsidized defense but with full indemnification for damage awards. The law reads as follows:
“[ejvery official, [or] employee ... of the Commonwealth of Puerto Rico who is sued for damages in his personal capacity, when the cause of action is based on alleged violations of the plaintiff’s civil rights, due to acts or omissions committed in good faith, in the course of his employment and within the scope of his functions, may request the Commonwealth of Puerto Rico to provide him with legal representation, and to subsequently assume the payment of any judgment that may be entered against his person ...”
32 L.P.R.A. § 3085.
By reason of the cited statute, appellant/ defendants are not affected in any substantial fashion, whether in their personal or official capacity, by having to litigate the damage action without benefit of an interlocutory appeal. This is particularly so since trial must nonetheless proceed on the issue of equitable relief.
Given the above, I cannot help but examine, on the other side, of the coin, the plight of appellee/plaintiff. In addition to suffering the ignominy of a discharge/demotion after many years of faithful government service, she has been required, upon assertion of her constitutional claim, to fight against the full brunt of “city hall’s” economic and political weight, while bearing
As pointed out by the majority, I am not totally bereft of support for my position. The Court of Appeals for the Fourth Circuit in Bever v. Gilbertson, 724 F.2d 1083, 1086-1087 (4th Cir.1984), cert. denied sub. nom., Rockefeller v. Bever, — U.S.-, 105 S.Ct. 349, 83 L.Ed.2d 285 (1984), in considering the very question now before us reasoned as follows:
The plaintiffs seek equitable relief as well as money damages, and the [defendants] have no immunity from being put to trial on the equitable claims. They are the principal defenders of the state’s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at the trial. Whether or not they are immune from an assessment of damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damage claims cannot avoid the diversion of their attention from other official duties which the litigation will occasion.
(Footnote omitted).
The above concerns of the Bever majority, the strong judicial policy against interlocutory appeals, and the fact that the trial below will regardless proceed as to equitable relief, require a conclusion contrary to that reached by the majority. Appellate jurisdiction serves no great purpose at this point in this case. Accordingly, it should not exist.
II. Qualified Immunity
The majority, in my view, has today changed the law. Thus, because I believe the Supreme Court test for qualified immunity to be fundamentally at odds with that of the majority, I again return to Mitchell v. Forsyth. The language in Mitchell that governs our present inquiry runs as follows:
All [the appellate court] need determine is a question of law: whether [1] the legal norms allegedly violated by defendant were clearly established, or [2] in cases where the district court has denied summary judgment for the defendant on the ground that, even under the defendant’s version of the facts the defendant’s conduct violated clearly established law, whether the law clearly proscribes the actions defendant claims he took.
Id. 105 S.Ct. at 2816 (emphasis supplied).
The above language addresses both the issue of appealability and the test for qualified immunity to be applied on such appeals. Two potential tests, proper for both a district court and an appellate tribunal, follow from the above quote.
Thus, I note my strong disagreement with the majority as to the test we must apply. However, because this is a dissenting opinion, I feel obliged to discuss the qualified immunity merits not only under my approach but also that of the majority.
As noted above, the proper test involves a three-step inquiry. First, and most determinative, we must decide whether, at the time of plaintiff’s discharge/demotion, there “existed clearly established statutory or constitutional rights which a reasonable person would have known.” Harlow v. Fitzgerald, supra 457 U.S. at 818, 102 S.Ct. at 2738. Second, and intrinsically related to the first inquiry, the examination is one of “objective reasonableness of [the public executive’s] conduct measured by reference to clearly established law.” Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984); see also Mitchell v. Forsyth, supra 105 S.Ct. at 2818.
Third, and finally, the issues of clearly established law and objective reasonableness must and can only be assessed in terms of the circumstances. In the context of summary judgment, I have already noted that, where a bona fide dispute exists over material facts, both Mitchell and Fernandez v. Leonard require us to accept plaintiff’s version. Thus, I will discuss the above two inquiries — clearly established rights and reasonableness — both under plaintiff’s version and, because this is a dissent, under the version accepted by the majority, i.e., defendant’s. In my view, for purposes of this appeal, the outcome is the same: appellant/defendants do not prevail.
A. - Was there a violation of “clearly established” law which a reasonable person would have known ?
In 1975 the Supreme Court decided the seminal case of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1975). The issue presented to the Court was “whether public employees who allege that they were discharged or threatened with discharge solely because of their partisan political affiliation or nonaffiliation state a claim for deprivation of constitutional rights secured by the First and Fourteenth Amendments.” Id. at 349, 96 S.Ct. at 2678. Writing for the plurality, Justice Brennan, joined by two other Justices, held that patronage dismissals violated the First and Fourteenth Amendments, id. at 355-360, 96 S.Ct. at 2680-2683, and limited the propriety of patronage dismissals to policymaking positions.
Four years later the Court decided Bran-ti v. Finkel, supra. This time a solid majority of six Justices again ruled that the First and Fourteenth Amendments protected public employees from discharge solely by reason of their political beliefs. Id. 445 U.S. at 513-517, 100 S.Ct. at 1292-1294. More importantly, however, was the clarification of the standard to be applied in patronage discharge cases. The Court held that:
It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
Id. at 518,100 S.Ct. at 1294-1295 (emphasis supplied).
As I read Branti, it establishes the following rule: (1) it is a violation of the First and Fourteenth Amendments for a state official to discharge an employee by reason of his political affiliation or lack thereof, even though that employee may be a policymaker or hold a confidential position, (2) unless the discharging authority affirmatively establishes that political affiliation is an appropriate requirement for the effective performance of the office in question. The import of Branti in terms of what rights are “clearly established” is critical. As the language above reveals, the Branti Court provided two stern warnings: (1) that cavalier reliance by government employers on labels such as “policymaking” will be rejected by the courts; and (2) that the burden of proof in showing political affiliation to be an appropriate requirement rests on the defendant. This, in short, is a strict test.
In the five years following the Branti decision, and prior to de Abadia’s discharge/demotion, Branti has been cited and/or followed in a vast number of cases both in the federal and state systems.
Puerto Rico has not fallen behind in this respect. The Supreme Court of Puerto Rico, in the leading case of Ramos-Villanueva v. Secretario de Comercio, 112 D.P.R. 514 (1982), fully embraced Branti, and cited the above-quoted passage in ruling that the Regional Directors of the Commonwealth’s Commerce Department, although policymakers and confidential employees,
The courts must break the trend and vicious circle established on the island, of substituting government personnel, after each general election, on grounds foreign to a sound public administration; the political patronage and spoils system. The scenario recurs each time there is a change in the political party in power. The adverse consequences are fatal and alarming: the reduction in funds is substantial.
Id. (Citations and footnotes omitted).
To the above it should be added that, if necessary, this court could take judicial notice of a fact alluded to by Justice Negrón-García; namely, that in Puerto Rico’s often highly-charged political atmosphere, judicial action regarding political discharges is not back-page news. Rather, its far-reaching consequences make it the subject of headline copy and, to say the least, extensive public discussion.
Considering all this, I do not think it can be seriously contended that at the time of de Abadia’s discharge/demotion in 1985, the Branti standard was not clearly established law and was not known by any reasonable government executive in Puerto Rico.
There is an additional point. As stated by the United States Supreme Court and reiterated by the Puerto Rico Supreme Court, Branti also involves a burden. The burden is that the defendant must show political affiliation to be appropriate, and that nodding reliance on labels of policy-making will not suffice. It is with respect to this prong of Branti that the majority appears willing to presume ignorance of the law by defendants.
B. Did appellants meet their burden of establishing that they reasonably believed that political affiliation was an appropriate requirement for the effective discharge of de Abadia’s position ?
The above statement of the objective reasonableness/good faith test appears to be that of the majority. The problem is that, in order to determine what behavior is reasonable, we must assume facts.
The facts as alleged by plaintiff, if we were to presume these as accurate (as we must), establish that defendant has not met his burden. It is undisputed that plaintiff was Director of the Quality Control Program of the Department of Health. In her complaint, plaintiff describes the Quality Control Program as follows:
The Quality Control Program of the Department of Health has the distinct responsibility of providing the administrative structure for more than 18 examining boards having to do with the several occupations concerned with the health in Puerto Rico, including the Board of Medical Examiners.
Briefly stated, plaintiff’s position was to direct a program based on establishing standards for admission to the health profession. Defendant never directly challenges this assertion of fact, nor does defendant state, in his motion for summary judgment, why policy as to who gets to operate on us is the subject of partisan
But the description of the program she administered as stated in the complaint is not all that plaintiff offered. As previously noted, plaintiff also includes the affidavits of her predecessors, not members of plaintiffs party, and who served under opposite party superiors. These affidavits state that the position was not a policymaking one, and that based on their experience, political affiliation was not an appropriate requirement. As noted above, these disinterested statements cannot be regarded as frivolous, and contain an overwhelming inference, if not a direct statement, on the issue of inherent powers. In fact, if the disinterested affidavits of one’s opposite party predecessors do not suffice, I cannot see what will.
Thus, taking the Branti burdens and combining them with plaintiff’s nonfrivolous version of the facts, it cannot be said that defendant’s actions were, objectively speaking, reasonable in terms of the burden. In short, a discharge occurred with no indication that even the label of policy-making was accurate, and more importantly, that, given the nature of the program, political affiliation was in any way appropriate. The position as previously occupied had not been regarded as one subject to patronage. Under such facts, defendant cannot be said to have been objectively reasonable in light of the Branti burdens, and he must be made to challenge plaintiff’s version at trial.
I now address the majority’s inquiry; that is, whether under defendant’s version of the facts, he has shown himself to have reasonably believed that he met his burden of showing political affiliation to be appropriate.
No evidence was presented to the court below on this issue, except for the job description. Thus, assuming that only that document is relevant to a determination of whether or not political affiliation was an appropriate requirement for the effective discharge of de Abadia’s position, a contention which I do not concede, appellant/defendants have put all their eggs in one basket, and their case turns on whether or not that document is sufficient for purposes of overcoming their burden.
I begin with the proposition that there is nothing inherent in the title or position of de Abadia which would alert us to the inevitable conclusion that her's is a job which would require party membership. After all, the control of the quality of health services is a neutral subject matter which, without further inquiry as to the facts, no party would seem to be against, and all would ostensibly support. But the majority contends that what counts is the job description, thus we must again look at that document, particularly THI2 and 7, upon which the majority relies for its conclusion that political affiliation was required of someone who looks after the quality of health services.
The crucial information according to the majority is as follows, stated beneath the heading “Duties of the Position”:
“2. Advise the Secretary, Governor’s Aids and Legislators in the establishment of the philosophy, public policy, goals, and objectives related to the control of the quality of the health services.24
7. Recommend drafts of bills and bills directed to implement, amend or derogate provisions allowing for the development of the functions assigned to the Program; discuss them; process them for the consideration of the Secretary,*1209 the Governor or the Legislature and give follow up to determine the action taken.”
As in the case of the job title, there is nothing inherent in the language of If 2 or 7 that will help appellant/defendants to overcome their burden of establishing political affiliation as an appropriate requirement for effective discharge of de Abadia’s position. Although undoubtedly 11112 and 7 establish that her position is one which advises regarding policymaking, this is only part of the story. As we know, Branti unequivocably holds “that party affiliation is not necessarily relevant to every policy-making or confidential position.” Branti at 518, 100 S.Ct. at 1295. At this point it would be relevant to inquire whether the “effective performance” of this position was affected by the fact that past office holders belonged to a different party than that of the government in office at the time. Unfortunately, however, we are again faced with the majority’s prohibition against going outside the contents of the job-description document for help. Thus limited we ask, is there anything in 1111 2 and 7 which would indicate whether or not political affiliation is appropriate?
I believe there is a clear indication in the job description that political affiliation is not an appropriate factor. Both paragraphs refer to the various advisory actions which may be taken with reference to “the Secretary, the Governor [or his aids] and [or] Legislators [the Legislature].’’ Although it may be presumed that the Secretary and the Governor (or his aids) all belong to the same political parties, this most assuredly cannot be the case as applied to the members of Puerto Rico’s Legislature, where even under the worst of circumstances minority parties are guaranteed representation.
Last, but not least, in considering appellant/defendants’ burden that they reasonably believed that political affiliation was an appropriate requirement, I feel obliged to reiterate that there is no evidence in the record that Dr. Izquierdo-Mora (or the other defendants) relied upon, or even knew of the existence of, the job description when he discharged/demoted de Abadía.
For the reasons stated above, I believe summary judgment below was properly denied by the district court. Accordingly, I dissent.
APPENDIX
John M. Bever v. John D. Rockefeller, IV., 724 F.2d 1083, 1088 (4th Cir.1984); Frank Brown v. Lamar Alexander, 718 F.2d 1417, 1427 (6th Cir.1983); Paul A. LaFalce v. Michael Houston, 712 F.2d 292, 293 (7th Cir.1983); Robert Livas v. Edward Petka, 711 F.2d 798, 800 (7th Cir.1983); Jimmie McBee, et al. v. Jim Hogg County, Texas, et al., 703 F.2d 834, 837 (5th Cir.1983); Ardith M. Home, et al. v. Merit Systems Protection Board, et al., 684 F.2d 155, 158 (D.C.Cir.1982); Suzanne S. Harris, et al. v. Polly Conradi, et al., 675 F.2d 1212, 1217 (11th Cir.1982); Fox & Company, et al. v. Vincent Schoemehl, et al., 671 F.2d 303, 304 (8th Cir.1982); Lawrence M. Gibbons, et al. v. Christopher S. (Kit) Bond, et al., 668 F.2d 967, 968 (8th Cir.1982); Charles E. Sweeney, et al. v. Christopher S. (Kit) Bond, et al., 669 F.2d 542, 545-546 (8th Cir.1982); Peter J. Laskaris v. Richard Thornburgh, et al., 661 F.2d 23, 25 (3d Cir.1981); Harry M. Ness v. Elizabeth N.
. Defendants first claimed only a "demotion" had taken place, but, on appeal, counsel for defendant refers throughout (ex., see page 2, paragraph 2 of appellant’s brief) to the personnel action as a dismissal, an interesting Freudian slip, which I agree, more accurately reflects what actually occurred.
. As will be discussed, post, the translation relied upon by the majority, as to jf 2 of the description, is incorrect,
. The latter question here — whether given the powers, political affiliation is appropriate — is of course one of law. However, its critical underpinning is the nature of the powers, a factual issue that determines the legal one.
. This is also supported by the affidavit of the Secretary of Health during Dr. González and Mrs. de la Rosa's incumbency.
. The majority indicates that "the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiffs favor.” See opinion at pp. 1192-1193 (emphasis supplied). This however, as will be explained, misconstrues both Harlow and the issues presented. The dispute here is as to plaintiffs “inherent" duties, clearly a factual issue which cannot be decided under Rule 56 in view of the conflicting evidence. These factual issues have nothing to do with whether the law applicable to those facts is clearly established, which will be presently discussed.
. The lack of a showing by defendant is most unsettling because of the ease with which such a statement could have been included in defendant’s affidavit. In other words, it follows from the arguments of defendant’s counsel that defendant was entitled to rely on the accuracy of the job description and place his people in positions that, regardless of prior actual duties, had the potential of being high-level policy posts. If defendant indeed so relied on the accuracy of the job description, then I cannot see why defendant’s affidavit was silent on the point, unless perhaps such reliance simply could not be asserted in good faith.
. I would like to stress that the disinterested nature of these affidavits — i.e., that the predecessors were not of plaintiffs party, and that the predecessors served under opposite-party superiors — very substantially affects my dissent. In short, I agree with the majority that we must be wary of plaintiffs who, through spurious or suspect factual allegations, oppose summary judgment. But neither can we absolve defendants, who move for summary judgment, from establishing the facts material to their legal conclusions.
Thus, the problem in this case, apart from the authorship issue, is that affidavits by members of the opposite party are not of a spurious or self-serving nature. So, even if we regard the issue as inherent powers, I think the sworn testimony of these "seasoned” predecessors speaks to it. More importantly, they speak to the issue of whether political affiliation has historically been an appropriate requirement for the job, an admittedly legal conclusion but one based on very material facts. Thus, given Bran-ti, where the appropriateness of political affiliation is the relevant inquiry, I cannot see how, under the pleadings as they stand, the nature of the job (whether inherent or actual) is not in dispute.
. Defendant's affidavit, in explaining the cause of discharge/demotion, states that he "received only a cool greeting from her” and that he "interpreted such action as a manifestation of her negative attitude towards [him], the medical class, and her intention of not being cooperative to [his] program as Secretary of Health.” See Affidavit of Dr. Luis A. Izquierdo-Mora, fifí 7 and 8. This statement of perceived noncooperation as a basis of discharge, contrary to the majority’s inference, says nothing about reliance on the job description form.
Moreover, the discharge/demotion letter, signed by him and referred to in his affidavit, makes reference to a job title (“confidential position number 2-00460 of Executive IV in the Office of Quality Control of the Health Services of the Department") which is different than that used in the job description form ("Executive III” and "Program Director II”). Presumably, a government executive relying on the job description form would use the job title set forth therein. At the least, the contrary inference of "well, he was probably relying on the job description” cannot be properly drawn without a pro-movant bias.
. Even accepting this, I still do not see how, given the district court’s rationale below, we can decide the merits in the first instance. That is, if the majority indeed believes the district court mistook a legal dispute (the meaning of the job description) for a factual one, I again note that our recourse should be to remand for an initial, and final, decision below.
. This is especially so given that, in this case, plaintiffs have joined pendent state law damages claims. Because the state law damages claims arise out of "a common nucleus of operative fact,” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), the lawsuit below will not only continue on the federal law equitable relief claim, but on state law damages claims. Thus, to the extent the majority’s concern is based on damage liability apprehension, such apprehension of damages would appear to continue because of the survival of the state claims. Under this scenario, the majority’s concern boils down to a distinction between the apprehension felt by defendants on federal versus state law damages liability. In my view, the strong federal policy against interlocutory appeals cannot be made to give in to such distinctions, and much less to the refined concerns on which they are based.
. Report of the Proceedings of the Judicial Conference of the United States, September 7-18, 1985, Administrative Office of the United States Courts, Washington, D.C., p. 42 (1985).
. Id.
. United States Courts of Appeals, National Statistical Profile, Federal Court Management Statistics, 1975, Administrative Office of the United States Courts, Washington, D.C., p. 30 (1975).
. As noted below, the Commonwealth of Puerto Rico pays for the defense of this suit. 32 L.P.R.A. § 3090.
. See generally, "Annual Message on the Administration of Justice,” Midyear Meeting of the American Bar Association, Detroit, Michigan (February 17, 1985); "1984. Year-End Report on the Judiciary"; “1983. Year-End Report on the Judiciary.”
. The majority expresses a concern as to personal liability for punitive damages, which ordinarily follow from actions in bad faith. Thus, it would appear that, under the good faith requirement of the indemnification statute, officials would be left to pay their punitive judgments.
I believe the legislative judgment of drawing the line at good faith is a proper one. In short, the legislature has determined that apprehension as to one’s bad faith actions is appropriate. Egregious and knowing violations are just that. Thus, if the legislative judgment is not to condone them a priori, ours should not be either. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738-2739, 73 L.Ed.2d 396 (1982) (“Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; ...").
. The actual inquiry by the Mitchell Court did not involve presumptions of factual nondispute because, due to a hearing by the district court below, the facts on appeal were undisputed. Given these undisputed facts, the Court directly proceeded to inquire whether there had been a violation of clearly established law. The above-cited language, then, provides the only insight in Mitchell as to how, where facts are disputed in the pleadings, a court can nonetheless find an issue of law; in short, the court can adopt certain versions of the facts as the basis of a legal ruling.
. I address this point at pp. 1207-1209 post.
. Implicit in this concept of accepting plaintiffs version of the facts is the corollary that
. As to the line between policymaking and nonpolicymaking positions, Justice Brennan noted: "... it is the government's burden to demonstrate an overriding interest in order to validate an encroachment on protected interests ...” Id. at 368, 96 S.Ct. at 2687. This stern
. See Appendix. I note these cases not to imply that each fully repeats Branti, but simply to show that the case, by any standard, has been accepted as the law.
. It should be noted that under Puerto Rico law a confidential employee is defined as:
[T]hose 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 L.P.R.A. § 1350.
. I might add that this is the only setting with which I am familiar wherein a claimant cannot rely upon the timeless maxim ignoratum legis neminem excusat. Here claimant is required to prove not only that she had a legal right that was violated, but additionally that that defendant should have known of the right, something which clearly runs contrary to the quoted maxim and its presumption that everyone knows the law.
. The translation appearing in the record is incorrect in translating "al Control de Calidad de los Servicios de Salud” to mean "related to the health services.” The proper translation, as noted above, is “related to the control of the quality of health services," a description more reflective of plaintiffs assertion (not clearly rebutted by defendant) that the role of the agency she directed was to establish standards relating to admission to the health profession.
. See P.R. Const, art. III, § 7; 16 L.P.R.A. 3272.
