Robert S. CREAMER, et al., Plaintiffs, Appellants, v. Richard B. DANKS, etc., Defendant, Appellee.
No. 88-1392.
United States Court of Appeals, First Circuit.
Dec. 5, 1988.
1037
Lawrence S. Delaney with whom Jeffrey M. White and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, TIMBERS,* Senior Circuit Judge, and TORRUELLA, Circuit Judge.
* Of the Second Circuit, sitting by designation.
PER CURIAM.
After consideration of the briefs, arguments and record, we affirm substantially for the reasons set forth in the magistrate‘s careful and lucid opinion. 700 F.Supp. 1169.
We add that, of course, the absolute privilege for statements made in the course of judicial proceedings bars not only plaintiffs’ defamation claim, but all the causes of action alleged against defendant, including negligence for professional malpractice. Dunbar v. Greenlaw, 152 Me. 270, 128 A.2d 218 (1956) (judicial proceeding privilege bars malpractice against certifying physician in insanity proceeding). See also Sriberg v. Raymond, 544 F.2d 15, 16 (1st Cir.1976) (judicial proceedings privilege results in “freedom from civil liability“).
AFFIRMED.
Miguel A. FIGUEROA-RODRIGUEZ, et al., Plaintiffs, Appellees, v. Jorge L. AQUINO, etc., et al., Defendants, Appellants.
No. 87-1512.
United States Court of Appeals, First Circuit.
Decided Dec. 9, 1988.
Heard Feb. 1, 1988.
1037
Vannessa Ramirez, Asst. Sol. Gen., with whom Rafael Ortiz Carrion, Sol. Gen., and
A.J. Amadeo Murga for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.
The plaintiff, Miguel A. Figueroa-Rodriguez, brought this action pursuant to
Defendants moved for summary judgment both on the merits of plaintiff‘s claim under current legal standards and on the issue of whether Aquino was shielded from damages liability by the doctrine of qualified immunity. The district court denied this motion. The case was tried to a jury, and at the conclusion of Figueroa‘s case Aquino moved for a directed verdict, again claiming the protection of qualified immunity. The district court denied this motion. The jury rendered a verdict for Figueroa, awarding him $25,000 in compensatory damages. In the judgment thereafter entered, the district court not only awarded this sum to Figueroa against Aquino but also ordered the CDC and its current Executive Director to reinstate Figueroa to his former position, and ordered them and Aquino to reimburse Figueroa for back pay. Aquino moved for judgment notwithstanding the verdict, asking the district court to reconsider its denial of qualified immunity in light of this court‘s recent decision in Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987). Defendants also asked the court under
I. QUALIFIED IMMUNITY
The following facts are not in dispute. Figueroa was appointed as the Assistant Director of Administration of the CDC in
This appeal is not from the jury‘s determination of the merits of Figueroa‘s substantive claim—in particular, its implied conclusion that party affiliation was not an appropriate consideration for his position. Rather, the issue before us is whether the court below erred in denying Aquino‘s claim that he enjoyed qualified immunity from damages.4 While the former would relate to whether Figueroa was protected from patronage dismissal under present law as construed by the court, the latter examines whether the law at the time of Figueroa‘s dismissal was clearly established that he enjoyed such protection. We have recently discussed this critical distinction:
We emphasize at the outset ... that in deciding this qualified immunity issue, we do not resolve close questions of fact or law related to the merits of the plaintiff‘s claim in light of the law as it exists today. The applicable standards, as derived from the general rule enunciated in Mendez-Palou, reflect the state of the law in early 1985, when [PPD]-appointed officials actually implemented the employment decisions that have resulted in the flood of “patronage dismissal” cases from Puerto Rico. Being particularized reflections of the general state of the law at the time, they are useful only for the narrow purpose of determining what were not clearly “protected” governmental positions. In short, our task in disposing of the qualified immunity question is to ascertain “what a reasonable person would have known as to the state of the law” at the time of the alleged unlawful acts, “not what the actual answer is” in the particular case.
Rodriguez-Burgos v. Electric Energy Authority, 853 F.2d 31, 34 (1st Cir.1988) (citations omitted) (defendant entitled to summary judgment on qualified immunity from damages but not to summary judgment on merits of plaintiff‘s claims for injunctive relief). See also Goyco de Maldonado v. Rivera, 849 F.2d 683, 686 (1st Cir.1988) (distinguishing between standard applied to review of preliminary injunction, qualified immunity, and merits).
By January 1985 it had, of course, been clearly established in decisions of the Supreme Court that a state employee could not be removed for partisan political reasons from a job as to which party affiliation was not an appropriate requirement for its effective performance. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95. But the question of what government jobs appropriately included the ingredient of political affiliation was at that time a matter of considerable uncertainty, as the case law in this circuit since then well demonstrates.
The crux of the difficulty lay in determining those upper level management positions that a newly elected governor must constitutionally be allowed the option of filling with like-minded colleagues if meaning is to be given to the electoral mandate. To hold that party affiliation was an inappropriate criterion for most all of Puerto Rico‘s executive level positions, as our dissenting colleague Judge Torruella construes Elrod and Branti to mean, would force a new chief executive to govern through a bureaucracy responsive to officials appointed by a political rival—often a rival whom the voters have just rejected at the polls. Numerous decisions of this court, beginning in 1985 after the events here in question, have sought to trace the difficult line that divides executive positions where party affiliation is an appropriate criterion from the lesser or specialist offices where party affiliation has no constitutionally cognizable role to play.
The question here is thus whether it was objectively clear in January 1985, before the appearance of any of this court‘s precedent in the recent flood of Puerto Rico political firing cases, that Figueroa‘s Assistant Director position was one to which political affiliation lacked a valid relation. For us to determine this, our above precedent requires that we look, first, at the extent to which the CDC was involved in politically sensitive activities and, second, at the extent to which Figueroa‘s position could influence those activities. See Mendez-Palou, 813 F.2d at 1260-63; Rodriguez-Burgos, 853 F.2d at 35; Goyco de Maldonado, 849 F.2d at 684-85. While the qualified immunity inquiry is ultimately a question of law, see Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985); DeAbadia v. Izquierdo Mora, 792 F.2d 1187, 1191 (1st Cir.1986), it may also necessitate determining certain of the essential facts. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The underlying facts that inform the qualified immunity inquiry in a case like this concern “the nature of the job responsibilities relative to the government agency‘s undertakings that might be subject to partisan political disputes.” Rodriguez-Burgos, 853 F.2d at 35. The material evidence on this was fully developed here at trial,5 and while there were some facts in dispute, we do not think the resolution of these one way or the other would have any effect on Aquino‘s right to qualified immunity. We believe that under any version of the evidence Aquino was entitled, as a matter of law, to prevail on his claim of qualified immunity. We, therefore, hold that he was entitled to a directed verdict on that issue.
Turning to the first item of the two-part analysis relevant to qualified immunity, it is clear from the undisputed evidence that the CDC was engaged in a “politically sensitive mission.” Mendez-Palou, 813 F.2d at 1260. The company was shown to be a public corporation under the control of the Commerce Department of the Commonwealth of Puerto Rico.
The second part of the inquiry also comes out in Aquino‘s favor. The evidence at trial demonstrated that the responsibilities inherent in Figueroa‘s job would allow him, at least potentially, to influence political matters within the Company. It was brought out that the CDC, which is basically the corporate arm of the Commonwealth‘s Department of Commerce, is presided over by the Secretary of Commerce. The Secretary appoints the Executive Director of the Company subject to the approval of the Governor of Puerto Rico. The Executive Director in turn appoints his staff, made up of seven assistant directors: 1) Executive Deputy Director, 2) Assistant Director of Administration, 3) Assistant Director of Commercial Facilities, 4) Assistant Director of Budget and Finances, 5) Assistant Director of Comptrolling, 6) Assistant Director of Legal Affairs, and 7) Personnel Director. Figueroa held the position of Assistant Director of Administration, which under Puerto Rico Personnel Law is a noncareer “trust” position (“de confianza“).
Based on this job description, Figueroa‘s inherent duties as Assistant Director of Administration could be said to encompass policymaking, and communicative and confidential tasks that could potentially “have a bearing on the partisan goals and policies” of the CDC. Rodriguez-Burgos, 853 F.2d at 35; Mendez-Palou, 813 F.2d at 1263. It is true that many of Figueroa‘s duties were related to the day-to-day administration of the Company. For instance, he was responsible for supervising the cleaning and maintenance of the CDC‘s buildings. But other described responsibilities gave him greater authority that could influence the political mandate of the Company. He could counsel and assist the Executive Director not only in purely administrative matters, but also in sensitive areas such as budget preparation, training and compensation of personnel, and relations with the Company‘s personnel. He could assist in the “formulation of criterias [sic] for the preparation of the norms and procedures handbooks,” draft for his superiors’ signature correspondence to the Company‘s employees regarding administrative policies, and represent his superiors regarding administrative matters with outside organizations. As stated, he was one of the highest paid employees in the Company, see Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982) (relative pay a factor to consider), and his position was classified as one of “trust” or “confidence.” See Rodriguez-Burgos, 853 F.2d at 36 (although not determinative, classification was a factor to consider).
These responsibilities show that it was not clearly established in 1985 that Figueroa‘s job was purely technical, as it “potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication.” Juarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st Cir.1987) (emphasis in original). This conclusion is supported by our recent decision in Mendez-Palou, 813 F.2d 1255, holding that defendants there possessed qualified immunity. The plaintiff in Mendez-Palou had been fired from his position as Director of Administration of the Environmental Quality Board. His duties were very similar to the ones Figueroa had. We held that a person in such a position possesses “top level responsibility for the administration of an agency that could potentially handle matters of partisan political concern with some frequency.” Mendez-Palou, 813 F.2d at 1260. Although plaintiff‘s list of duties in that case tended to “stress what might be considered politically neutral ‘administrative’ functions,” id. at 1261, we nonetheless held that in 1985 it was not clearly established that a person performing such an array of functions had a constitutional right protecting him from politically motivated dismissal.6
We have held previously that the “inherent powers” of the office control the qualified immunity determination, not what any individual officeholder actually does. DeAbadia, 792 F.2d at 1192. In this case, Figueroa‘s “inherent powers” are evidenced by an undisputed exhibit received in evidence, the list of duties and responsibilities of the Assistant Director of Administration. The fact that this list may be ambiguous at some points and open to various interpretations does not detract from Aquino‘s qualified immunity claim. See DeAbadia, 792 F.2d at 1193 (“the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiff‘s favor“). The focus is on what Figueroa could or potentially could do in his job because “we are attempting to ascertain whether defendants could objectively perceive their demotion of the plaintiff to be clearly unlawful.” Rodriguez-Burgos, 853 F.2d at 36. Given this focus, Aquino was entitled to qualified immunity because it was not clearly established in January 1985 that political affiliation was not an appropriate requirement for the effective performance of the job of Assistant Director of Administration. Aquino‘s “actions could reasonably have been thought consistent with the rights [he is] alleged to have violated.” Anderson, 107 S.Ct. at 3038. Thus he was entitled to a directed verdict on this issue. It follows that the $25,000 in compensatory damages assessed against Aquino must be set aside.
II. THE BACK PAY AWARD
In its judgment the district court directed the CDC and its current Executive Director to reinstate Figueroa with back pay at the same salary and with the same fringe benefits that he would otherwise have been entitled to but for the discharge.7 Moving under
For reasons stated below, we conclude that the CDC is entitled to immunity under the Eleventh Amendment if it is in fact an alter ego of the state, and remand this case to the district court to determine that issue. In addition, we find that, even if the CDC is found not to be entitled to immunity, the
A. Eleventh Amendment Immunity
Defendants have not pursued their Eleventh Amendment defense to the back pay award on this appeal.8 However, because this defense calls into question a federal court‘s jurisdiction, we are free to address this issue sua sponte, and do so now. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945); Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 32 (1st Cir.1988). See generally C. Wright, A. Miller & E. Cooper, 13 Federal Practice & Procedure § 3524, at 167-171 (1984). The Eleventh Amendment, which deprives the federal courts of power to hear claims for damages against any of the United States, has been held to apply to Puerto Rico. Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir.1983); Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 776 n. 7 (1st Cir.1981). This court has held previously, in situations similar to this, that the Eleventh Amendment bars an award of back pay against a state or an alter ego of the state. Fernandez v. Chardon, 681 F.2d 42, 59 (1st Cir.1982); Echevarria-Gonzalez, 849 F.2d at 32. Consequently, it must be first determined whether the CDC should be regarded as an alter ego of the state and thus immune from the back pay award. The factors to be taken into account when determining if an entity is an alter ego of the state are “whether it performs a governmental function, whether it functions with substantial autonomy, to what extent it is financed independently of the state treasury, and if a judgment sought to be entered against the [entity] will be satisfied out of the state treasury.” Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 517 (1st Cir. 1987).
The record before us lacks the information needed to fully consider these factors and reach a conclusion as to whether the CDC is an alter ego of the Commonwealth of Puerto Rico. Information as to the last two factors is especially skimpy. While the statute governing the CDC,
We thus remand this case for the district court to receive evidence and make the necessary findings of fact relative to whether the CDC is an alter ego of the Commonwealth of Puerto Rico. In making this determination, the district court should examine, in light of the case law and the four factors set forth in Culebras Enterprises Corp., the statutory sections governing the CDC and the evidence presented by the parties. If the district court finds that the CDC is not an alter ego of the Commonwealth, it may reenter the back pay award.
In Della Grotta, 781 F.2d at 346-47, even though the language of the Rhode Island statute did not expressly waive Eleventh Amendment immunity, this Court held that Rhode Island had waived such immunity where the Rhode Island Supreme Court, in response to a question certified by a federal district court in another case, had found that a Rhode Island statute “manifest[ed] ... a legislative intent’ to waive the State‘s eleventh amendment immunity to suit in federal court.” Our research has uncovered no ruling by the Supreme Court of Puerto Rico holding that
To summarize, if the district court finds that the CDC is not an alter ego of the Commonwealth, it may reenter the back pay award. If instead it finds that the CDC is such an alter ego, it may (but need not) certify to the Supreme Court of Puerto Rico the question of whether
B. Reduction of Back Pay Award by Interim Earnings
Even if it is determined after remand that the CDC is not immune from the back pay award, we hold that the award of back pay must be reduced by Figueroa‘s interim earnings. Figueroa asks us to follow Torres Cartagena v. Secretary of Education, 94 P.R.R. 660 (1967), which held that an improperly discharged teacher was entitled to back pay without any reduction for interim wages. However, the measure of damages in
Figueroa testified at trial concerning his employment and earnings between his discharge and reinstatement. On remand, if it is found that the CDC is not immune from the back pay award, the district court should determine the amount by which Figueroa‘s back pay award must be reduced to reflect his interim earnings and reduce the award accordingly.
To summarize, (1) Aquino was entitled to qualified immunity from damages. The damages award of $25,000 assessed against him is vacated. Aquino is also not liable for the back pay award. (2) Unless the Supreme Court of Puerto Rico finds a waiver of Eleventh Amendment immunity in this case, the CDC is immune from the award of back pay under the Eleventh Amendment if it is found to be an alter ego of the Commonwealth. If the district court determines on remand that the CDC is not such an alter ego, it may reenter the back pay award against the CDC; however, the back pay award must be reduced by Figueroa‘s interim earnings. If the district court instead determines that the CDC is an alter ego of the Commonwealth, it may (but need not) certify to the Supreme Court of Puerto Rico the question of whether there has been a waiver of the Commonwealth‘s Eleventh Amendment immunity in this case. If it is found on such a certification that there has been such a waiver, the reduced back pay award may be reentered, otherwise not.
Vacated and remanded for further proceedings consistent herewith.
APPENDIX
DUTIES AND RESPONSIBILITIES
- Will assess [sic] the Executive Director through the Executive Subdirector in matters and affairs related to all the administrative areas, in harmony with the Company‘s programming policy.
- In coordination with the Executive Subdirector and the Deputy Director of Finances-Comptroller, shall take part in matters related to the Company‘s systems and operational procedures, assisting in the formulation of criterias [sic] for the preparation of the norms and procedures handbooks.
- Will assess [sic] the Executive Director, through the Executive Subdirector, in the preparation of projections for human resources, compensation and fringe benefits and, in harmony herewith, will collaborate in the preparation of the Company‘s functional budget.
- Will plan, coordinate and supervise, with prior approval from the Director and Subdirector, the programming, negotiation and offers of training and instruction of the Company‘s human resources in tune with the guidelines of short and long term objectives.
- Will direct, coordinate and supervise the personnel and the operations, affairs and matters related to the administration of the Company‘s personnel affairs, including the administration of fringe benefits.
Will direct, coordinate and supervise the personnel and functions related to the negotiations of purchases or equipment acquisition, supplies and/or services required by the Company. - Will provide and/or supervise the provisions of administrative services, which include the services of reproduction of documents, inside and outside messengers, telephone services and the reception and attention to visitors.
- Will participate in the coordination of business related to the Building administration on which the Company offices are located, keeping alert to the necessary steps and negotiations so as to maintain the employees’ physical security and the provision of cleaning and maintenance services of the physical plant.
- Will direct, coordinate and supervise the personnel and its labors pursuant to the administration of documents, which include the receiving, distribution and the handling of valuables and other correspondence received and originated at this Company and the procedures pursuant to the Central Files which envolve [sic] coding and filing of documents. Will supervise the preparation and execution of the disposal of the Company‘s documents, in tune with the applicable regulations.
- Will draft for the Executive Director or the Executive Subdirector‘s signature the correspondence to be sent to Company officers and employees related to the services abovementioned that would imply the establishment of new administrative policies or modification or reinterpretation of existing ones, and other correspondence, memorandums and documents related to their functions or that they may require.
- Will represent the Executive Director and/or the Executive Subdirector, will coordinate and serve as the Company‘s contact agent with other organizations and government people and private persons in matters, business and transaction of services confined to the Administration Area.
- Will perform other functions inherent to the position.
TORRUELLA, Circuit Judge (dissenting in part; concurring in part).
In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court sought to protect public employees from the ravages of the partisan spoils system, in order to promote First Amendment values as well as to exalt principles of good government. Although we have not yet taken the final, bold step of openly reversing these cases and the tenets for which they stand, in this appeal we come one step closer to this proscribed outcome. By disallowing the grant of back pay to political discriminatees notwithstanding a demonstration of entitlement to equitable relief, the majority further dilutes Branti and Elrod to the point of total ineffectiveness. A brief analysis of the majority‘s reasoning on both the qualified immunity and back pay issues suffices to substantiate this conclusion.
I. Qualified Immunity
Three remedies have traditionally been available to political discriminates in actions brought under
The allowance of damages is subject to the restrictions imposed by the doctrine of qualified immunity, whereby public officials are exempt from the payment of damages in
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent. (Citations omitted).
The test for determining what is “clearly established law” in this circuit, however, is different, a difference upon which I have previously had occasion to comment. Goyco de Maldonado v. Rivera, 849 F.2d 683, 690 (1st Cir.1988) (Torruella, J., dissenting); Juarbe-Angueira v. Arias, 831 F.2d 11, 17 (1st Cir.1987) (Torruella, J., dissenting), cert. denied, 485 U.S. 1035, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988); Quintana v. Anselmi, 817 F.2d 891, 893 (1st Cir.1987) (Torruella, J., dissenting); Raffucci Alvarado v. Zayas, 816 F.2d 818, 822 (1st Cir.1987) (Torruella, J., dissenting); Rosado v. Zayas, 813 F.2d 1263, 1267 (1st Cir.1987) (Torruella, J., dissenting); Rodríguez Rodríguez v. Muñoz Muñoz, 808 F.2d 138, 149 (1st Cir.1986) (Torruella, J., dissenting); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1204 (1st Cir.1986) (Torruella, J., dissenting). The majority opinion highlights the inherent fallacies in the standards adopted by this circuit for these purposes.
The majority opinion highlights the majority states that I would rule “that party affiliation was an inappropriate criterion for most all of Puerto Rico‘s executive level positions [which] would force a new chief executive to govern through a bureaucracy responsive to officials appointed by a political rival.” See ante at 1041. This characterization of my position states too little, of course. Government employees at all levels must, like federal judges, comply with their oath of office irrespective of who has appointed them to their office. But, “[T]he Court has consistently recognized that mere political association is an inadequate basis for imputing disposition of ill-willed conduct.” Elrod v. Burns, 427 U.S. at 365, 96 S.Ct. at 2685. “[E]mployees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist.” Id. at 366, 96 S.Ct. at 2686. See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). That party affiliation is an inappropriate criteria for retaining a government job, executive or otherwise, is not of my invention. See Branti v. Finkel, supra, and Elrod v. Burns, supra. Such a requirement is the exception rather than the rule, as appears to be from the opinions of this circuit.
Applying what is by now circuit rote, the majority concludes that CDC meets the first test of its two part analysis (whether the government agency in question “was involved in politically sensitive activities“). Ante at 1041. But this first test, as construed by the majority, is a non-test. The majority seems to believe that every government agency, department or entity is by its very nature involved in a “politically sensitive activity.” In fact, no governmental agency analyzed by our court for these purposes has ever failed this test. See, e.g., Goyco de Maldonado, supra, (Housing Bank); Fontane-Rexach v. Puerto Rico Electric Power Authority, No. 87-1801 (1st Cir. April 22, 1988) (Power Au-
The second part of the circuit analysis suffers from similar infirmities. The inquiry here focuses on the individual position in question, to determine whether its inherent responsibilities allow the incumbent, “at least potentially, to influence political matters” within the agency in question. Ante at 1042. It is difficult, if not impossible, to find a position that could not potentially influence political matters. This is a dragnet from which escape has proved impossible.
In applying these two tests, the majority confers every benefit and presumption to the transgressing official while constitutionally dispossessing the discharged employee. The only way that a defendant could fail the majority‘s non-test is if a court had previously held that the very position in question was immune from politically motivated dismissals. Thus, this circuit has transformed a doctrine that was intended to confer qualified immunity, into one that guarantees absolute immunity.
The basic flaw with the majority‘s two-prong analysis is that it undermines exactly what the Branti Court considered paramount. There, the Court was striking down discrimination based on political party membership, where “party membership was [not] essential to the discharge of the employee‘s governmental responsibilities.” Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95 (emphasis added). The Court emphatically stated that “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. That declaration is not a watered down apologiae for the partisan spoils system; it is a strong policy statement against it. Yet this circuit, in letter and in spirit, fosters exactly the opposite result. The bottom line is that the majority‘s lax standards prevent political discriminatees from obtaining compensatory damages, “the only realistic avenue for vindication of constitutional guarantees,” Anderson, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 814, 102 S.Ct. at 2736).9 In this circuit, qualified immunity is tantamount to absolute immunity.
Even if the two-part analysis is accepted, proper application would lead to a different result. A reading of the discriminatee‘s duties and responsibilities, ante at 1046-47, would appear to establish that plaintiff‘s duties were of a purely administrative or technical nature, falling squarely within the scope of that least-cited and most-ignored circuit precedent, De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1013, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987).10 When one compares the duties
Even if I were to agree that the defendants’ enjoyed qualified immunity, however, I would still hold that they were liable for back pay. I now turn to the majority‘s rulings on reinstatement and back pay.
II. Reinstatement and Back Pay
Reinstatement in political discharge cases is an ineffective remedy when unaccompanied by the payment of the employee‘s lost wages or compensation for the damages suffered by him and his family. Reinstatement alone merely places the discharged employee in a hostile environment, subjected to subtle but nevertheless real harassment and intimidation of a kind difficult to prove in court, even assuming that it is actionable.11 The result is entirely predictable. The reinstated employee will in all likelihood be unable to withstand the chilling pressures to which he will be subjected, as happened in this case. See ante at 1039 n. 2. Reinstatement alone fails to provide an effective deterrent to the recurrence of unconstitutional conduct by the public official. This court cannot in justice continue to overlook these realities of the governmental work-place.
Following traditional principles of equity jurisdiction, the district court in ordering reinstatement also awarded plaintiff back pay as part of the equitable relief. See cases cited supra at 1047. Appellant-defendants raised an Eleventh Amendment immunity defense before the district court in their answer and, after judgment, this defense was renewed in their
The majority, motu proprio, raises and decides this important question. I cannot, of course, technically challenge its power to rule upon this matter in such a fashion. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906-07, 79 L.Ed.2d 67 (1984). I do, however, have serious doubts whether, under the circumstances of this appeal, it is wise to proceed by such an expediency. We have not received the benefit of briefs or arguments from the parties. In fact, we have not even notified them that we are considering, much less deciding, this issue. Particularly because of CDC‘s de facto waiver of this question on appeal, our failure to give the parties the opportunity to be heard before we consider and decide it borders on a denial of due process.
Furthermore, I do not think that the CDC‘s failure to appeal the Eleventh Amendment issue is coincidental or a mere oversight. Defendants-appellants are not pro se litigants. They are represented by the Solicitor General of Puerto Rico. If such a party chose not to claim this defense on appeal we can be certain that it was for a good reason. It should be noted that in all the cases cited by the majority for the proposition that the Eleventh Amendment
Even assuming this case presents an appropriate opportunity to address this important constitutional question, I would have reached a different result. Whether the CDC is immune from suit under the Eleventh Amendment12 depends on whether it is the alter ego of the state. See Blake v. Kline, 612 F.2d 718, 721 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). Nine factors are relevant to the resolution of this question:
* * * [L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency‘s operations.
Id. at 722 (quoting from Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970)).
On the narrow issue of whether CDC is entitled to Eleventh Amendment protection, I believe that we need go no further than the record in this case and the statute creating CDC to find the answer. The CDC was created by
Counter-indicative of governmental independence are provisions that state that the CDC shall be “attached” to the Commonwealth‘s Department of Commerce (
I am convinced, based on the statute, that CDC is not the alter ego of the Commonwealth for purposes of the Eleventh Amendment. Although some factors suggest otherwise (the main one being that CDC is controlled by the Secretary of Commerce and his nominees), they are outweighed by those factors that point in the opposite direction. CDC is an independent entity that possesses the power to enter into contracts, issue debt, to sue and to be sued. Most persuasive is the fact that Puerto Rico has officially immunized itself from liability for CDC‘s operations. I see no reason to remand this case for factual findings on the alter ego issue. Cf. Ainsworth Aristocrat International Pty. Lmtd. v. Tourism Company of the Commonwealth of Puerto Rico, 818 F.2d 1034, 1038 (1st Cir.1984). Even if, arguendo, the district court were to find that the Commonwealth controls CDC and always pays off its debts, I would still hold that Puerto Rico‘s sovereign immunity does not bar damage awards against CDC.13 Puerto Rico cannot distance itself from CDC in state court while simultaneously claiming that CDC is its alter ego in federal court. “Having one‘s cake and eating it, too, is not in fashion in this circuit.” United States v. Tierney, 760 F.2d 382, 388 (1st Cir.1985).
This result would make unnecessary our raising and deciding, motu proprio, the broader constitutional question of whether the Eleventh Amendment bars the recovery of back pay in
Even if I had to decide the constitutional issue, I would hold that the back pay award is not barred by the Eleventh Amendment in this case. Irrespective of the status of CDC as an alter ego of Puerto Rico, these defendants are also being sued in their personal capacity. No Eleventh Amendment concerns are raised if the monetary relief is not “paid from public funds in the state treasury,” but rather is paid “from the pockets of the individual state officials who were defendants in the action.” Edelman, 415 U.S. at 663, 668, 94 S.Ct. at 1358.
Contrary to the contention of the majority, ante at 1042-43 n. 6, I do not believe that the granting of qualified immunity to defendants from an action at law in damages affects the back pay remedy against defendants in their individual capacity, because it is allowable within the court‘s equity jurisdiction. The equity jurisdiction of the district courts is unaffected by the doctrine of qualified immunity which concerns the granting of compensatory damages at law. See Wood v. Strickland, 420 U.S. 308, 315 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214 (1975); Brown v. Bathke, 566 F.2d 588, 593 (8th Cir.1977). In distinguishing between a recovery for damages in an action at law and an action in equity for monetary relief, the Supreme Court recently ruled in Bowen v. Massachusetts:
Our cases have long recognized the distinction between an action at law for damages—which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation—and an equitable action for specific relief—which may include an order providing for the reinstatement of an employee with back pay ...
This is an important distinction in view of the specific language in Section 1983 which pointedly separates the relief available “to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
This is precisely the case as relates to the back pay order entered here by the district judge, separate from the damage awards in the jury verdicts. The district court granted equitable relief in the form of reinstatement and back pay. These orders, as against the individual defendants, should stand as part of the equitable claim for relief which is unaffected by defenses to the legal damages judgment.14
It should be noted that in deciding cases under Section 1983, federal courts have long recognized the equitable nature of back pay awards. See Whiting v. Jackson State University, 616 F.2d 116, 122 n. 3 (5th Cir.1980); Moore v. Tangipahoa Parish School Bd., 594 F.2d 489, 494 (5th Cir.1979); Burt v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201, 1205 (4th Cir.1975); Demkowicz v. Endry, 411 F.Supp. 1184, 1191 (D.C.Ohio 1975); Mabey v. Reagan, 376 F.Supp. 216, 225 (N.D.Cal.1974), rev‘d on other grounds, 537 F.2d 1036 (9th Cir.1976); Adamian v. University of Nevada, 359 F.Supp. 825, 831 (D.C.Nev.1973), rev‘d on other grounds, 523 F.2d 929 (9th Cir.1975).
It could be argued that the same policy reasons that justify granting qualified immunity to governmental executives in damage actions, e.g., “that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 107 S.Ct. at 3038, are equally applicable to back pay recoveries against officials in their individual capacity. Accepting such a proposition as valid on its face is misleading within the framework of the actual circumstances of this case. Although the specific coverage varies, in Puerto Rico and 47 other non-federal jurisdictions, statutes
In the case of Puerto Rico, the applicable statute is
Every official, ex-official, employee or ex-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. Executive Directors, ex-Executive Directors, members and ex-members of the Governing Boards of public corporations and Government instrumentalities, mayors and ex-mayors and officials and ex-officials of the municipalities shall be covered by these provisions except that, for the payment of judgments they shall be governed by the provisions of section 3092 of this title. Any action brought under the provisions of sections 3077-3084 of this title shall not be covered by the provisions of this section.
Likewise, these provisions shall not be construed, for any reason whatsoever, as making the Commonwealth an insurer of the aforesaid public servants, nor as a waiver of the sovereign immunity of the Commonwealth.
Because of this statute, the fear expressed by the Supreme Court in the Anderson v. Creighton line of cases is totally unfounded with regard to Puerto Rican officials that are sued for back pay in an individual capacity.
Appellee should be entitled to the award of back pay against individual defendants in their personal capacity because the award is against an individual, one who obviously cannot fit the requirement of an alter ego of the state. There is no direct payment from the public treasury—the judgment is against the individual, who can, however, seek indemnity from the state.
III. Reduction of the Back Pay Award
I concur with the majority‘s conclusion that interim earnings should reduce the back pay award. There are strong policy reasons in favor of encouraging the mitigation of damages, particularly where equitable relief is being requested.
This circuit has slowly but surely emasculated the principles espoused by Branti and Elrod. Unfortunately we have received scant subsequent guidance from the Supreme Court as to whether they are still the law of the land. Until the Court clarifies the situation, I cannot understand why alleged discriminatees continue to seek relief under