Miguel A. Rosario-Torres v. Rafael Hernandez-Colon, Etc., Appeal of Franklin Martinez-Monge, Miguel A. Rosario-Torres v. Rafael Hernandez-Colon, Etc.

ROSARIO-TORRES, al., Miguel A. et

Plaintiffs, Appellees, HERNANDEZ-COLON, etc.,

Rafael et

al., Defendants, Appellees.

Appeal Franklin

MARTINEZ-MONGE,

Defendant. ROSARIO-TORRES, al.,

Miguel A. et

Plaintiffs, Appellants, HERNANDEZ-COLON, etc.,

Rafael et

al., Defendants, Appellees.

Nos. 87-2097. Appeals,

United States Court of

First Circuit. Sept.

Heard

Decided Nov. Juan, Lang,

Rafael F. Castro San whom Jose Ramon Perez Hernandez and brief, Rafael Hernandez on Sanchez were plaintiffs, appellees. Angel Rey, Jose with whom Zuleika Llo- vet, Saldana, Alvarado, Rey, Moran & Hato Rivera-Cruz, P.R., Rey, Secretary Hector Justice, P.R., Bayamon, Jorge Per- Gen., brief, ez-Diaz, Sol. were on for defen- dants, appellees. CAMPBELL, Judge,

Before Chief BOWNES, BREYER, TORRUELLA and SELYA, Judges. Circuit SELYA, Judge. Circuit years ago, More than two we remarked “steady of civil actions in drumbeat volving politically claimed motivated dis charges arising change in admin out of the gu following istration Puerto Rico’s 1984 Vazquez Rios election.” bernatorial Colon, (1st Hernandez Cir.1987). Time has little diminished that e.g., Arbona-Custodio v. diapason. (1st Cir.1989) Jesus-Gotay, 873 F.2d 409 de Gonzalez-Vega v. Hernan curiam); (per dez-Colon, (1st Cir.1989) (per F.2d 519 curiam); Feliciano-Angulo v. Rivera- Cruz, (1st Cir.1988); Goyco de 858 F.2d 40 Rivera, 849 F.2d 683 Maldonado v. Arias, Cir.1988); Juarbe-Angueira denied, (1st Cir.1987), cert. appeals presently before us politi on the same winds of are borne aloft change. cal (and thus, I politically motivated violative amendment); they the first and that had plaintiffs, nine each of whom There are procedural protections been denied the Progressive Party the New is a member of guaranteed to them the Due Process (NPP). May they were all Prior Clause of the fourteenth amendment.2 Af- (La employed at the Governor’s mansion trial, ter a bench the district court deter- Rico, Fortaleza) serving in Puerto as driv- to, plaintiffs mined that entitled were ers, warehousemen, messengers, typists, denied, procedural process, had been due Although assigned and the like. to “ca- Colon, Rosario Torres v. Hernandez of them positions, reer” none had been F.Supp. (D.P.R.1987); that the hired in accordance with the recruitment “sham,” pretermination hearings awere id. protocol in Puerto set forth Rico’s civil 648; plaintiffs and that the had been Popular service laws.1 After the Demo- solely by political dismissed their reason of election, Party the 1984 cratic won defen- affiliations, id. at 653-55. The court Martinez-Monge gov- became the dant new backpay, compensatory damages, awarded charge of administration. ernor’s aide punitive fees, damages, attorneys’ capacity, In that he was the decisionmaker plaintiffs, costs to all only but ordered one regarding at La Fortaleza. worker reinstated. Id. at 655-56. long falling. May The axe was not On The 20, 1985, ruling produced lower court iterating defendant sent letters two no- appeal. panel tices of A of plaintiffs that all nine had been recruited in this court divid- regulatory questions ed on certain of disregard hiring presented. scheme. the requested pretermination Eight plaintiffs petition rehearing Defendant’s for en banc hearing, subsequently granted held in June panel which was 1985. The and the hearing concluded that opinions examiner the facts withdrawn. 875 F.2d 351 Cir. May 1989). recited in the letters were accurate. Supplementary briefing and oral ar- All plaintiffs shortly were dismissed there- gument before the full court followed. after. II

Plaintiffs filed suit Puerto Rico’s fed- eral district court under procedural prob U.S.C. 1983 We first address a § (1982),claiming that their dismissals jurisdictional were lem. It is a prerequisite that repeat description 1. district through Register We court’s Eligi- of are to be filled of applies protocol as it to the Office of the bles. (much upon stip- Governor of which was based Colon, F.Supp. Rosario Torres v. Hernandez facts): ulated (D.P.R.1987). plain- It is clear that the compete jobs by tiffs did not for their examina- The Office of the Governor is an Individual tion; they register were not hired from a of Administrator under sections 1341 and 1343 (if all) them, eligibles; and that personnel most Title law. The Office hired, possess requisite qualifi- when Regulations did not employ- issued Personnel for its (educational approved by experiential) cations ees La Fortaleza the OCAP and/or positions. Office of Personnel [Central Administration] 3, 1978, January pursuant on to 3 L.P.R.A. originally governor, 2. Plaintiffs sued the Rafael regulations § 1347. The foreword of the indi- Colon, Hernandez as well as his aide. At the they promulgated implemented cates are trial, however, nonjury start of the the district in furtherance of and on areas essential to the granted plaintiffs’ motion to dismiss with principle. regulations pro- merit contain prejudice as to Gov. Hernandez Colon. At the hiring employees. visions for the of career entered, judgment Martinez-Monge time final Specifically, requires applicants section 7.4 written, oral, was the sole through defendant before the court. compete physical, or office; have been informed that he performance has since left applicants examinations. Those successor, Vazquez-Garcia, Hector pass placed is there- who register the examination are eligibles, aon party appeals. Fed.R.App.P. fore a according to these See ranked to their 43(c)(1); 25(d)(1). grades. see also examination Fed.R.Civ.P. Section 7.5.1. Whenev- For reference, however, er ease in the Office of the Governor does we shall continue not have a available, register eligibles Martinez-Monge only treat as if it he were the use registers corresponding (although any defendant before the court maintained orders are, course, binding upon Vazquez- OCAP or other individual herein administrator. 7.6, Garcia, capacity). Section 7.5.4. Under section vacancies in his official appeal by unnamed based specify party tain an appeal a notice of “shall containing a statement that “all taking appeal.” Fed.R. on a notice parties id.; see also Gon 3(c). See plaintiffs appeal.” If a notice is not suffi App.P. (use ap plural zalez-Vega, ciently particularized, it fails to confer 866 F.2d at 520 Torres v. Oakland notice, pellate jurisdiction. body to “plaintiffs” 312, 108 S.Ct. Scavenger gether inclusion of words “et al.” 2405, 2409, 101 (1988); Gonza specificity re caption, insufficient to meet Hernandez-Colon, lez-Vega v. quirement). Lastly, large we—and the ma instance, plaintiffs’ In this notice of appeals held jority of other courts of —have filed on It appeal was October unequivocally specificity ap rules caption: bore the one, ply appeals, full force to like this TORRES, al., Scavenger taken before the Oakland opin MIGUEL A. ROSARIO et e.g., Santos-Mar ion announced. was Plaintiffs tinez, 863 F.2d at 177; v. United States notice, entirety, body of the in its read 181, (8th Spurgeon, 861 F.2d 183 & n. 3 as follows: v. Cir.1988) McMichael (distinguishing THE TO HONORABLE COURT: States, 856 F.2d 1024 (8th Cir.1988), United hereby given plaintiffs that Notice is Oakland Scaven apply which declined to through undersigned attorneys, ap- their Pipe ger Cotton v. & retroactively); Ap- peal to the United Court of States 158, (11th Foundry 856 F.2d Cir. peals for the First Circuit from the final County Angeles, Los 1988); Meehan caption in judgment entered the case of (9th Cir.1988); Appeal 102, 856 F.2d 21, September on Ass’n, District Columbia Nurses’ plaintiffs There a total of nine be were curiam), 1448, (D.C.Cir.1988) (per F.2d 1449-50 yet no was fore district court — — denied, U.S. -, rt. ce specifically in the notice’s text as an named (1989); Board 105 L.Ed.2d 697 cf. appellant, only Miguel Rosario-Torres Colleges State & Governors Universi caption. in was named Under these — Akins, U.S. -, ties v. circumstances, appeal the notice of sufficed (1988) (mem.) (vacating bring grievances Rosario-Torres’ before remanding judgment and for reconsidera Acevedo-Ruiz, Mariani-Giron v. us. pre-Oakland Scavenger in tion case which 1114, 1116 (1st Cir.1989) (the pres 877 F.2d only party one appeal notice of that named ence of a defendant’s name the case parties), sufficient notice for all was held “coupled in the caption, with the statement remand, (7th on Cir. appeal body of the notice of that ‘defen Scavenger 1988) retro Oakland (applying appeal,’ hereby dants ... satisfied as to actively). But, specificity requirement”). him the ado, that further we conclude Without wholly inadequate to the notice was appeal of power to entertain the we lack remaining plaintiffs. See Oakland Sca Al- any plaintiff save Rosario-Torres. venger, Gonzalez-Vega, 2409; 108 S.Ct. at harsh, admittedly it though a result is 519-20; Santos-Martinez Scavenger. Oakland compelled by is (1st Soto-Santiago, 175-76 purported appeals jurisdiction over have no Cir.1988). speci- not sponsored by appellants would-be longiloquent on the We need not wax appeal. notice of fied in a timeous topic. previously decided leave no Cases inserting doubt this circuit Ill caption “et al.” in the case words left, then, 3(c). appeals: with two one See Oak- We are fulfill the mandate of Rule (who 2409; proper filed a Scavenger, 108 S.Ct. at San- of defendant land on behalf tos-Martinez, notice) timely and one to Rosario- F.2d at The use of appeals, in the of Torres’ behoof. These plural (“plaintiffs”) the notice issues, (1) the aggregate, raised five viz.: equally unavailing; analogous ap- circumstances, ruling plaintiffs’ propriety to enter- we have refused token, defendant’s By the same ex though illegal, “created an pointments, was, on this immunity claim employment,” Ro qualified of continued pectation against him. record, resolved appropriately Torres, entitling F.Supp. at sario sufficiently clearly May it was id. process,” due “procedural them to posi receive; (2) persons lowechelon established they did fired be could not be tions such as these finding viability of the See, e.g., affiliations. political solely of their cause because dismissed “were Rico Elec. id.; (3) v. Puerto Fontane-Rexach [NPP],” affiliation with political (1st Auth., immune Power qualifiedly defendant whether Rios, Vazquez Cir.1988); F.2d at 325- id. money damages, liability for from Colon, v. Hernandez see also Roure 26; compensatory dam 648; (4) whether Cir.1987) (“Defen were too to Rosario-Torres ages awarded appointments were that the complaint position dants’ (5) meager; Rosario-Torres’ void, of Puerto if correct as a matter even did not win that he law, that defen does not establish precious little Rico job. There is immunity qualified are entitled to middle three dants on the bones flesh Amendment respect plaintiffs’ to First in with panel was unanimous offerings. The Branti, generally claims.”); 445 U.S. see points, court on these upholding the district 6, n. 6. The 100 at 1291 principally at 512 n. S.Ct. granted en review banc we finding justifies the that Martinez- record first and fifth issues. We consider the to money therefore, held in dam simply Monge note could be liable to enough, it is think plaintiffs’ first amend 2-4, making ages violating items as to acquiescence our rights. regard thereto. ment only comments a few compensato Finally, the amount of possible one plaintiffs, with These pause. The size of low-level, ry damages gives us no nonpolicy- occupied exception,3 only for clear modern-day an is reviewed “[t]hey are award making positions: v. e.g., United States Ven of wood and error. equivalents of the ‘hewers ” Fuel, Inc., (1st Rios, 741, Cir. Vazquez 819 drawers of water.’ Thus, 1985). speaks on the 9:21). the factfinder Where Joshua (quoting F.2d at 322 response plau to a quantum damages politics permissible was not Finkel, ap evidentiary predicate, the court of Branti v. generally sible criterion. See long “so as the end 1287, peals will not meddle 507, 100 63 L.Ed.2d 574 S.Ct. Burns, 347, the conscience of result does not violate Elrod v. (1980); 427 U.S. chord that (1976). such a dissonant The court or strike L.Ed.2d 547 judgment denied were the replete justice evidence would be record is nonetheless Moceri permitted to stand.” Milone v. constitutionally protected plaintiffs’ Cir.1988). Inc., (1st Family, F.2d motivating conduct was a substantial Notwithstanding plaintiffs’ insinuations them. The to cashier factor the decision contrary, judge appears trial concluded, supportably, district court misapprehensions no have labored under not have eventuated ab firings would Because the sum liability The artificial constraints. protected conduct. sent the compensatory Mt. easily crossed. Rosario-Torres awarded threshold was possi Board damages fell the universe Healthy District “within City School evidence,” 274, 286-87, supported by the awards ... Doyle, Education v. 429 U.S. ble (1st Taylor, (1977). Cir. Clark 568, 575-76, 50 L.Ed.2d 97 S.Ct. service, (1st Cir.1987), quoting Abadia v. De separated 3. When from Mora, Rosario-Torres, Izquierdo Cir. plaintiff, Miguel was lead A. C.J., 1986) (Campbell, concurring). We need employed Officer III.” Rosario as an "Executive Torres, pursue point, not ar Arguably, posi- as defendant has F.Supp. at 646. gued panel politics us or to the the center of what we tion land closer to —to —that job. spectrum.” appropriate for Rosario-Torres' criterion have described as “the Elrod-Branti Rohena-Bectancourt, argued nor are waived. Points neither briefed Mendez-Palou 1983), legally wrongheaded, it line we cannot brand inade us that this of cases is alternative, quate. distinguishable. inor The panel majority appears per- to have been respects. suaded in both The en banc IV Having carefully is not. reexamined chaff, Having segregated wheat from progeny, and its recogniz- Kauffman turn our attention to the two issues which ing question close, that the we continue prompted appeals us to rehear these en correctly expli- believe Kauffman separately. them banc. discuss expressly cates rule of law and we holding reaffirm its and rationale. A. Due Process. no subject. We see reason to dwell on the process The due in this issue case turns seriously dispute Judge Plaintiffs do not plaintiffs, having on whether been hired analysis pertinent Coffin’s incisive Puer- illegally positions, acquired to fill “career” law, they to Rico id. at nor could property positions. interests fruitfully principal, do so. Their indeed sufficiency of a claim of entitle only, argument against pres Kauffman property public ment to a interest em Supreme cinds from the Court’s decision in ployment by, must be measured and decid Cleveland Bd. Education v. Louder to, Bishop ed with reference local law. v. mill, 470 U.S. 105 S.Ct. Wood, 341, 344, (1985). But, the Kauffman In a series of panel distinguishing was meticulous in cases, precise ques we have addressed the Kauffman, Loudermill. See law, tion in holding terms of Puerto Rico temptation 1174-75. We resist the carry unambiguously on three occasions “that rest, coals to Newcastle and without fur any property right under Puerto Rico law elaboration, ther on the distinction drawn position associated with a career is ren therein. dered null and void if a violation of the Nor do we see a material distinction be- filling Personnel Act attends the of such a tween the situation at and our bar earlier position.” v. Puerto Rico Tele Kauffman precedents. panel sought The to differenti- (1st phone 1173 Cir. ground ate on the that Mar- Kauffman 1988); Jesus, accord de Feliciano v. de 873 tinez-Monge employ- himself “hired [other (1st Cir.1989); F.2d 452-55 Santiago- regard Register,” without to the in- ees] Castro-Davila, Negron v. cluding persons fairly who could be viewed (1st Cir.1989); see also Arbona- And, plaintiffs’ successors.4 defendant Jesus-Gotay, Custodio v. de place illegally-hired employees left in some (alternative holding); 409 n. Rosario “appointed” posi- who had been to “career” Torres, (“Public F.Supp. employ at 650 prior tions at La Fortaleza to 1985. Rosar- ‘illegally’ ees hired positions to career have Torres, F.Supp. io at 647. We fail to property expectation no interest or to con see how these facts are relevant. In employment, therefore, tinued no en Kauffman, off-Reg- reasoned an we that process prior titlement to due to termi appointment “contrary ister was an act nation.”). Thus, “to the extent that the regulations furthering laws and the under- plaintiffs were hired in violation of [the Act,” lying values Personnel not, agency’s rules], they upon ... could nullity. F.2d at and was thus a The termination, ‘property’ benefit from the legal question plaintiff’s of a entitlement to positions.” status of [their ‘career’] Kauff constitutionally-protected property inter- man, 841 F.2d at 1174. employment nothing est “has to do with plaintiffs Feliciano, The have launched a two- fault.” de [defendant’s] assault, pronged endeavoring plaintiff’s engagement to convince F.2d at 454. If a replacements transitory, 4. The F.Supp. were named as at 647. career, Torres, employees. rather than Rosario restoring Rosario- in not void, court erred defendant’s mis- lower then null was payroll. to the Torres transmogrify it into some- deeds wrongs, af- meaningful. Two thing more that reinstatement Plaintiff asseverates right. Gray make a See all, not do ter to a concomitant an inevitable should be 648, 663, 107 Mississippi, jettisoned employee finding that (1987) (quoting 2045, 2054, L.Ed.2d 622 Mar- rights. constitutional violation of approval). hand, adage asserts with tinez-Monge, on the other im- never be reinstatement should finding The controls. Kauffman its public employer when posed upon a plaintiffs' rights under “defendant violated officials force state accomplishment would amendment,” F.Supp. fourteenth panel majority infringe state law. sustained. cannot be urged by approximating that took a view Rosario-Torres, ruling persons uncon-

B. Reinstatement. stitutionally discharged be refused extraordinary “only in cir- reemployment court, noting The district nothing Discerning suffi- cumstances.” (Pedraza) had not Rosario Pedraza Victor ordinary place ciently out of the during pend- found other norm, beyond panel set aside case ordered him rehired. litigation, ency of the district challenged portion Torres, F.Supp. at 655. The Rosario court’s decree. however, “discretion- court, recognized its to reinstate the anew, and declined ary power” tackling question Id. remaining plaintiffs. approach reject out of hand the absolutist necessary, urged by defendant. Where that our con at the outset We note wrong past dis right “remedies to solely Rosario-Torres’ lies cern may suspend crimination valid state laws.” The other unreins of this determination. Beecher, Chapter Boston NAACP perfect at did not their tated Cir.1982). Thus, in a and their entitlement appeals, tempted strikingly case similar to that at bar—in us. properly before are claims positions in volving persons hired to career token, By the same defen Part II. supra violation of the Personnel Act and there appellant, peti qua original brief dant’s party of affil after cashiered because banc, rehearing supple en and his held, tion for squarely recently, and iation—we to the en banc court are all mentary brief politi for a of the remedies available “[o]ne argumentation addressed to bereft of discharge in of first amend cal violation the district court’s order portion of reappointment.” rights Santiago- ment is reemployment.5 Pedraza’s mandated which are Negron, 865 F.2d at 437. We satisfied therefore, must, be deemed to Defendant that formulation and have no desire to any right complain about proposition. have waived It is established in revisit See, then, e.g., circuit, United reinstatement. that reinstatement was Pedraza’s 564, McNatt, 842 F.2d 567 legally righting available as a means of States v. reference, of Cir.1988) (conclusory wrongs devoid which the district Elrod-Branti perpetrated, does not suffice found to have not pertinent argumentation, been informality appeal). Accordingly, withstanding with which on point to raise question whether the had been hired. of turn to the narrow well-settled, us, necessary, principle parties ter. It is a and chose obscure For reasons briefing proce- appellee portions themselves of assail of a not to avail that an Instead, 28(h). Fed.R.App.P. judgment opposing parties dure detailed they favorable to without separate- appeal two notices of treated the initiating particular attack in his own notice appellant’s separate ly, filed and and each side See, e.g., briefing thereon. of and the regard appeal. appellee's to each briefs 569, White, Corp. v. 584 F.2d Bath Iron Works legality allusion to the of Pedra- There was an Moore, (1st Cir.1978); see also J. 573 n. 2 9 original defendant’s brief za's reinstatement (2d ed. 204.11[3] Moore’s Federal Practice ¶ qua appellee, paralipomena of that sort is but 1988). legally way raising appropriate of a mat- not a Burr, available, v. legal United States say principles.” To is 30, (C.C.D.Va.1807) (No. 14, however, F.Cas. say is not to it is Re inevitable. 692d) C.J.), approval (Marshall, cited with equitable remedy instatement is an and the Paper Moody, in Albemarle Co. v. equity ability hallmark of is the to assess 405, 416, 2362, 2371, U.S. 95 S.Ct. all relevant facts and circumstances (1975).6 Defining L.Ed.2d 280 those appropriate by tailor relief on a case case legal principles” “sound way in a See Burton Cascade School Dist. basis. does not transform the trial court’s discre 5, 850, High Union School No. gauzy tion into perplexing illusion is a (9th Cir.) (choice (per curiam) chore, occupied legists one that has since remedy may be influenced careful despaired before Lord “equity Eldon weighing circumstances), of all facts and varies like the Chancellor’s foot.” [that] denied, 839, cert. 423 U.S. 96 S.Ct. Pritchard, See Gee v. Eng.Rep. (1975); Pred v. Board Public (1818). Instruction, (5th Cir. cases, In sug discrimination 1969) (choice remedy “depend can on all gestions as to when and how reinstatement facts”). equity jur “The essence of infinitely should be ordered are almost var power isdiction has been the ... to mould start, ied. At the we set to one side partic each decree to the necessities of the cases, many that, Title YII of which hold Bowles, Hecht Co. ular case.” given discrimination, a finding of unlawful 321, 329, 587, 591, 64 S.Ct. 88 L.Ed. 754 remedies, equitable including certain rein (1944). events, equity all is more elastic statement, ordinarily should follow. flexibility particu than wooden —and seems Lewis, e.g., In re (6th larly involving important desirable in cases Cir.1988); see also Franks v. Bowman rights private public institutions. As Transp. 424 U.S. 96 S.Ct. right the Court has written: “Once a and a 1251, 1267, (1976) (restora 47 L.Ed.2d 444 shown, scope violation have been of a Paper, tion Albemarle seniority); equitable powers remedy district court’s (award U.S. at 95 S.Ct. at 2373 broad, past wrongs is for breadth and flexi generis Title VII is sui backpay). for two bility equitable are inherent remedies.” First, any touching upon reasons. decision Charlotte-Mecklenburg Swann v. Bd. of light remediation must be considered in Education, 1, 15, purposes the statute’s “central ... of erad icating throughout discrimination the econ way, say Put another when we that rein- omy making persons injuries whole for “available,” statement but not “inev- discrimination.” Al through past suffered itable,” we mean that reinstatement is a Paper, 422 U.S. at bemarle remedy which lies within discretion of Second, compensatory because discretion, course, court. trial Such of punitive damages are not available to Title Aggarwal is not unbounded. See v. Ponce Rumsfeld, see DeGrace v. plaintiffs, VII Medicine, 723, (1st School 745 F.2d 727 796, (1st Cir.1980) (collecting 614 F.2d 808 of Cir.1984) (“[t]he cask which encases a cases), palette the district court’s of avail discretion, commodious, judge’s though can scantily en able make-whole remedies is shattered”). party A be backpay [nevertheless] dowed. Even awards of are cir seeking appeals reinstatement “not pay liability “Back shall not cumscribed: [the inclination, judgment; but to its years accrue from a date more than two court’s] judgment guided by prior filing charge.” 42 its is to be sound to the of a U.S.C. Story upon may, by general principles; 6. Justice echoed and elaborated rules and but at time, Chief Justice grants Marshall’s words: the same relief, which withholds or [Equitable right according is not a matter of to the circumstances of each relief] party; case, either the but is a matter of discretion in particular princi- when these rules and Court; arbitrary capricious not of dis- ples will not furnish exact measure of cretion, dependent upon pleasure the mere of justice parties. between the sound, Judge, the discretion, but of that and reasonable (1st 1836). Story, Equity Jurisprudence 742 ed. § itself, governs which as far as it 322 denied, 881, 248, 469 105 S.Ct. 83 cert. (1982). the avail U.S. The fewer 2000e-5(g) § likely redress, (1984), more us that persuades of 186 L.Ed.2d methods

able principles” expressed counsel in legal will of “presumption” reinstatement that “sound law, relief of as the reinstatement of is not a rule but favor therein substantive high a run Any other course would attempt merely choice. an reformulation signal purp frustrating Title VII’s that, determining risk of principle appro basic Markey, 1, F.2d 706 See Costa side, chancery priate relief on the courts ose.7 denied, 464 Cir.1982), cert. U.S. 6-7 equities. weigh and should balance (1983). 547, 722 1017, 78 L.Ed.2d 104 S.Ct. This mean that does not cases litigation us falls not before ad hoc completely decided in a must be rubric, VII within the the Title but under readily There fashion. are some observa (1982). In the 42 U.S.C. 1983 purview of § ex-employee ble constants. Whenever milieu, remedial limitations 1983 section alleging wrongful sues dismissal a pertain. do not Title VII encumber which government agency, job may restoration be 247, Piphus, Carey v. 435 See aspect meaningful relief. a material Yet 11, n. 1048-49 & 55 n. & world, in the real reinstatement unlaw (1978) exempla (compensatory, L.Ed.2d ful-discharge place cases often will some damages may be punitive awarded ry, and likely agency: on the there will burden be respect of constitutional under § (or hostility) par tension even between the violations). sure, some courts To be rights reunited; employees forcibly ties when pre is a have stated previously per have who assumed duties remedy in cases section 1983 sumptive by the have formed fired worker will to be appreciably clarious call is well, but and, returns; displaced he when or she as a And, considera there seems be muted. result, public’s be business con even on an intra-circuit imprecision; ble efficaciously. somewhat ducted less Be basis, language from case to case varies may, agree that as it with those courts Compare, e.g., panel. panel and from routinely have ruled such “inci Educ., Autauga County Bd. Allen v. burdens, in accustomed dental” their man Cir.1982) (rein (11th 685 F.2d ifestations, sequelae are foreseeable of de required “except in extraordi statement wrongdoing, usually fendant’s insuffi with, City e.g., cases”) Williams nary cient, more, tip the without scales Valdosta, (1th Cir.1982) F.2d against first reinstatement when amend plain (reinstatement remedy is a to which rights are in a section ment at stake normally special entitled ... absent tiff “is Banks, 1165; action. Pro O’Loughlin, circumstances”) and Lucas v. Ass’n, 269; Allen, F.2d at fessional (11th Cir.1987) (prevailing 1305; Sterzing v. Fort Bend “ordinarily reinstate entitled to Dist., Independent School ”), ‘unusual circumstances’ ment absent 1974). (5th Cir. denied, cert. perceive do not a positioning review of Attentive gener- see, e.g., cases, weighbeam departure as a from Banks v. similar these and is, rather, Burkich, (6th equitable principles. It al mere- Cir. College Edu way starting-point Ass’n of 1986); ly setting Professional Community Paso County El district court’s Once cators v. consideration. this is Dist., 258, (5th Cir.), understood, 730 of College “presumption” F.2d 269 rein- that, 2373; significant City Regardless, Angeles it at Los 7. seems even 95 S.Ct. see also of indicating equitable Manhart, certain relief to be Dept. while presumptively Water & v. 435 Power of cases, appropriate VII 702, 719, 1380, in Title 1370, 98 S.Ct. 55 L.Ed.2d 657 pains taken to reaffirm the Court has still sali- that, (1978) (holding notwithstanding Albemarle discretion, judges' instructing of trial ence presumption, gave district court "insufficient at "recogniz[e] appeals to of trial courts equitable tention to the nature of Title VII reme appreciation have often the keener court will of thereby granting dies” and in erred retroactive partic- peculiar facts and circumstances to those relief). cases,” Paper, Albemarle ular 422 U.S. at

323 just the dress suggested statement becomes of courts have this circum- thought, support alone saying a shorthand manner of stance suffices to a denial of See, equitable public-sector job. reinstatement to a considerations different in Lucas, e.g., 236; Abeyta, degree regularly or kind from those accom- 499 F.2d panying present reinstatement must be if is to be withheld from the plaintiff For thing, another had been of a

victim first amendment infraction.8 illegally. posted hired He not meet did requirements position (Executive for the mind, these With tenets we ex III, supra note which 3) see Officer he had amine record to determine whether the occupied.9 Equity always must be mindful district court’s refusal reinstate Rosar public interest. See United States doing, io-Torres was sustainable. so Morgan, 183, v. 194, 795, 307 U.S. 59 S.Ct. emphasize that we a district review court’s (1939) (“It 83 L.Ed. 1211 is familiar equitable for choice remedies abuse of doctrine that the extent to which a court of discretion, Independent and Chemical Oil equity may grant aid, or withhold its Mfg. v. Procter Workers & Gamble moulding remedies, the manner of its (1st Cir.1988) (injunctive F.2d public affected be interest in Rico, relief); Earnhardt v. Puerto volved.”). equitable remedies, In shaping (1st Cir.1984) (lost fringe benefits; F.2d comity See Rizzo large. concerns can loom Abeyta v. Town of interest); prejudgment Goode, 362, 379, v. 423 U.S. 96 S.Ct. Taos, (10th Cir.1974) (re (1976) 46 L.Ed.2d (“appropriate instatement), acknowledging that the trial given principles consideration must be judge, who has exposure had first-hand determining federalism in the availability evidence, litigants and the is in a con relief”). scope equitable For those siderably position bring better the scales reasons, court-ordered reinstatement of il into balance than an appellate tribunal. legally-hired, insufficiently credentialed prius nisi The its abuses discretion a particularly workers strikes if only we are left a firm conviction jarring Despite note. the misconduct of it meaningful has committed “a error officials, governments lightly be es- Inc., Cryovac, judgment.” Anderson topped complying provi from with valid (1st Cir.1988); see also In Heckler e.g., v. Commu sions law. Josephson, re Cir. nity Services, Health 51, 60, 467 U.S. 1954) (Magruder, C.J.). 2218, 2224, (1984); that, Hansen, The record 785, 788-90, reveals above and be- Schweiker yond 1468, 1470-72, the incidental which burdens rein- impose Phelps v. Federal might public (1980) (per curiam); statement order on a special Emergency employer, a number Management Agency, considera- play (1st Cir.1986). tions were in case. For one F.2d Although thing, property right, had no reinstatement can ordered even in be su- interest position. equities no vested if overall circumstances warr IV(A). pra Part reinstated, therefore, ant,10 If Santiago-Negron, cf. immediately for (affirming he could be fired no reason illegally- reinstatement of any permissible presumably qualified for reason. Some hired —but —munici- that, despite strong language process, note 8.We trial court had discretion to refuse rein- proponents putative expectation statement couch the because sometimes reemployment speculative). presumption, the courts which coined the term judges accord still district considerable discre- parties stipulated, example, that Ro- presence to determine that tion "noninci- sario-Torres fell short of the minimum edu- may render dental” considerations reinstate- cational attainment level. Lucas, e.g., unwarranted. ment (trial deny could reinstatement when Martinez-Monge That himself recruited off- event, legally plaintiff, in Register, staffers, be fired could place illegally-hired and left in some immediately reinstatement); Burton, after supra examples see at are of coun- cf. (where tervailing F.2d at plaintiff equities denied due had which to be considered. wise, in clear error are unable see political we employees in discrimination pal quintes- of what was suit), should hesitate to the trier’s rendition appellate courts judge judgment call. sentially a trial who decides a force the hand of case. given in otherwise a V elapsed period of time had

Finally, long a discharge the and Rosario-Torres’ between go no further. dismiss We need We press He did not entry judgment below. Rosario- appeals plaintiffs all other than pre way of immediate reinstatement for appellate jurisdiction. Torres for want relief, De liminary injunctive Choudens finding cf. affirm the district court’s Bank, Development v. Government abridged plaintiffs’ first amend- defendant banc) Cir.1986) (en (affirming F.2d 5 answer rights ment and should be held to via grant reinstatement district court’s in reverse the damages therefor. We merits), pending injunction trial on preliminary ruling: court’s amendment be- fourteenth denied, rt. ce had been hired in violation plaintiffs cause (1987), otherwise. L.Ed.2d Act, enjoyed of the Personnel none of them suitable He obtained other inter- constitutionally protected property Baja) (with Toa municipality within Thus, due government jobs. ests in their By time of of his month dismissal. Moreover, process implicated. not be- was trial, working he for San Juan tell the erroneous cause we cannot whether earning only government, moder municipal process influenced conclusion about due Although fired.11 ately less than when damages, re- the court’s assessment perfunctory, in description the record Judge mand the case so that Pieras comparable fairly to the present job seems necessary determine whether it is to reduce Even in the one left behind. which he compensatory puni- and-or awards of VII, closely precincts Title more cabined consequence holding damages tive of our given weight has been such a consideration today. Santiago-Negron, 865 F.2d at Cf. in the reinstatement calculus. See Brito v. (remanding, markedly under similar (10th Cir.1973) Zia, 1200, 1204 circumstances, damages for new trial on deny (trial court had discretion reinstate by jury). Lastly, we previously awarded found, or ment to could have who refusing to affirm the district court’s order found, work). other reinstate Rosario-Torres as an Executive Officer III at La Fortaleza. case, judge In this the district sat with- legal eq- jury, dispensing both out 87-2097, In is dismissed No. uitable relief. He awarded the Miguel other A. appellants as to all than compensatory punitive substantial him, Rosario-Torres. As to the order de- fees, backpay, damages, as well as counsel clining reinstatement is affirmed. judge seems have and costs. The judgment below is No. equities weighed and balanced part, part, and reversed in affirmed parties’ rights care. Mindful of the judge. to the same remanded district “special” existence of considerations over All parties shall bear their own costs. “incidental” and above the routine burdens imposes on employ- TORRUELLA, Judge Circuit illegality particularly the of Rosario- er— part, dissenting part). (concurring hiring initial and his lack of formal Torres’ job “steady political dis- qualifications for the cannot fault drumbeat” of —we judge’s reemploy- majority to order crimination cases which the finds reluctance we, music, if writing on a with Greek ante at ment. Whether or consonance 315,12 tragedy. more akin pristine page, might have concluded other- I find to Greek him, monthly earnings figure F.Supp. paid La For- at $1029 11. Plaintiff was lower 649, appears to have been earning in error. that he was $885 taleza. He testified monthly Transcript, Trial of trial. See time “Diapason” or con- is defined "the interval Ill at district of a vol. 238. The court’s use of the octave in Greek music.” Web- sonance music, drama, 2701, 2708-2710, the But more than or facts 92 S.Ct. (1972). me of this case remind of the fictional L.Ed.2d rejected The Court this fantasy govern- depicted 22. The argument, among Catch other reasons because it retroactively applies ment standards to low below, Loudermill, had not been raised employees level that do not n. 105 S.Ct. at 1491 n. —standards employees, obviously even exist. These un- but also because: “standards,” mythical to meet able the face argument retrospective relies on a [T]he only consequence: they jobs. the lose their undisput- inconsistent with the fiction ed that Loudermill was hired and fact I security guard job. did hold the quarrel opin- I cannot with Part II of the escape Board cannot its constitutional ob- by ion as this result is mandated the Su- ligations by rephrasing the basis for ter- preme Court’s decision in Torres v. Oak- mination why as a reason Loudermill 312, 108 Scavenger 487 U.S. land should not have been hired the first (1988). 101 L.Ed.2d 285 This place. hypertechnical avoids, part outcome in for (emphasis supplied). Id. Court, ruling our the embarrassment of present In controversy, Miguel the A. public employees satisfactorily work- Rosario stronger Torres’ case13 is even ing drivers, capacity messengers, than Loudermill’s because of his total lack workers, typists up and warehouse culpability in hiring process. Rosar years, protectible nine lack by interest began working io Torres in the Office of the Due majority Process Clause. The can- February the Governor on 1979 as an not, however, totally sidestep the issue. through administrative clerk. He rose var plaintiff There remains one who cannot be positions July 1, ious until 1982 when he easily deprived protection so afford- was transferred into the career service as ed Cleveland Bd. Education v. III,” Officer “Executive a low echelon Loudermill, 470 U.S. supervisor of service and maintenance em later, ployees. years July Two on Loudermill, the Cleveland Board of change political after administration security Education hired the as a elections, resulting from the 1984 Rosario guard. job application hisOn he stated allegedly Torres fired because he had he had never been convicted of a felo- position been hired to the career without ny, when in fact he had been convicted of complying regulations promoted with the grand larceny. months, After eleven pursuant to the Puerto Rico Personnel falsity Board discovered and summari- (Supp.1989). Law. 3 L.P.R.A. See § ly discharged him for dishonesty without regulations, These internal which are ex affording him opportunity respond empt general from Puerto Rican law re charge challenge or to his dismissal. quiring publication government regu The Board claimed that Loudermill had no lations,14 establish that property right under state law because he job register fill from eligible vacancies fraudulently appointment. obtained his It written, applicants passed oral, who have alleged they also would not have hired examinations, physical, performance begin Loudermill to with if he had answer- specified who meet educational and/or Therefore, truthfully. ed the Board ar- experience requirements. work gued, “legitimate he lacked a claim of en- position law, titlement” to hearing under state The district court after extensive prerequisite process separated his due claim. evidence fact See from fiction and Roth, Regents Board uncontrovertedly require found Dictionary, (Supp.1989). ster's Third New International G. & 14. See 3 L.P.R.A. § also Mass., Company, p. Springfield, Acevedo, C. Merriam Oppenheimer F.Supp. Méndez (D.C.P.R.1974), aff'd, matter, 13. And for that cases of those whose Cir.1975). appeal we have dismissed as well. Loudermill, were, interest. in the unpublished regulations tected Like the of ments undisputed nonexistent. Rosario Torres v. facts are that Rosario Torres practice, Colón, F.Supp. job from which Hernández hired and did hold the was eligibles, register No of no (D.C.P.R.1987). performed fired. He the work for he was examination, requirements no and formal paid and years, was for this work was two any employee for instituted were ever legitimate held the otherwise out to be Fur of the in the Office Governor. hired fantasy position. holder of his It is to comply thermore, the failed happen that all of did not pretend this regard “requirements” with with these legal significance. no that it has Loud Cf. replaced Rosario employee ermill, n. 470 U.S. at 539 S.Ct. at Thus, even if Rosario Torres had Torres.15 By ruling, majority n. 5. is its regulations unpublished about known applying inconsistent retroactive fiction taken, he no test could have no there was Id. undisputed with those Defen facts. qualified, register for which he could have escape dants constitu “[should] [their] requirements he could have no obligations by rephrasing the tional basis he was hired. district met before why for termination as a reason [Rosario Torres that Rosario court concluded hired in should not have been Torres] illegality of alleged his unaware place.” Today’s holding Id. first allows notified of the appointment until he was history. Irrespective defendants to rewrite discharge. Id. at 651. possibility of his got there, of how he Rosario Torres was knowledge ruled this lack of The court there, process and was entitled to due be appointment legal under Puer- his rendered Perry fore he was removed. See v. Sin Id. at 652. to Rican law. dermann, 408 U.S. clearly distin knowledge This lack height It is present appeal from guishes the Kauff audacity interpose defendants to non F.2d 1169 Rico Tel. man v. Puerto procedure unpublished existent from an (1st Cir.1988), a case in which we make justification regulation as for the commis “ being to interfere with much of ‘reluctant gross sion of a constitutional violation. of state a reasonable construction law by This court should not taken in be sitting in a by judge, a district state made argument. with state’s law and who is familiar ” by pious pro- Nor should we taken be (citing Rose practices.’ Id. testations to the that federal effect courts Education, Nashua Bd. of cause the violation valid state Cir.1982). employ Certainly, an power Federal laws. courts have participation in an lack of conscious ee’s suspend actively even state enforced laws by employer his is relevant illegal action suspension required to when such is correct employ whether the determination Furthermore, rights civil violations. this initio, majority is void ab as the ee’s action circuit has not been at the sidelines complicity today. Because of lack holds power. this exercise of case, by employee there is doubt has breached state law that that he Chapter, Beecher, In Boston NAACP v. ab would make void initio. (1st Cir.1982), vacated on deeper. runs But the cut grounds, other (1983), 76 L.Ed.2d we held misses in its hold- point This Court seniority system the Massachusetts enact- ings present in both Kauffman statute, hired, fully place, ed must be case. Puerto Rican law estab- Once subjugated requir- to a court order employee career district lishes that a cannot be except ing discriminated minorities to be hired discharged “for cause.” 3 L.P.R.A. 1336(4) regard seniority rights (Supp.1987). point At that the without to the § ruled, employee acquires constitutionally pro- employees. in accord other This, course, Torres, grounds. supra, equally applicable to the technical See Rosario other whose we dismiss on 651-52. is rights); what now settled federal constitutional Association Professional law, College Educators v. El County Paso Community District, School 730 F.2d right wrong past [R]emedies (5th Cir.1984) (same); Allen, may suspend discriminations valid state (same); Santiago- see also F.2d at 1305 law. Negrón, (reinstatement 865 F.2d at 437 is Although rashly we cannot thrash about of the remedies available for a “[o]ne laws, suspending state neither should we political discharge in violation of first shy away remedy from this appropri- when rights”). amendment The reasons for ate. First, this rule are evident. reinstate necessity The for action in goes this case important ment best policy serves the beyond the realm appropriate. of what is Albermarle Pa make-whole relief. Cf. against public Political discrimination em- per Moody, Co. v. 418 [95 ployees in Puerto Rico is so endemic that 2362, 2372, (1975) 45 L.Ed.2d 280] judicial even this can Court take notice of (discussing policy context). in Title VII deplorable Taking notice, situation. Along lines, these the Eleventh Circuit however, enough. is not To a allow subter- has observed that person loses “[w]hen fuge by defendants, such as is claimed job, his disingenuous it is at best say particularly pinnacle when it is done at the money damages can suffice to make government, only of local compound is person psychological whole. The impact unhealthy deleterious of this benefits of intangible, yet work are they practice. problem requires To correct this ignored.” Allen, are real and cannot be vigorous remedy, provid- effective as addition, 685 F.2d at 1306. In presump ined Beecher. Which leads me to the next helps tive reinstatement to deter future point disagreement majority— with the Employers violations. contemplating un the district court’s refusal to order Rosario constitutional decisions will reinstatement, Torres’ majority’s discouraged be if their victims are approval of this action. promptly reinstated. See id. Such de particularly

terrence will be welcome where, here, the results of an election II may tempt employer to “clean house” holding Our on the reinstatement issue in violation of the Constitution. wrong signals sends the by placing the courts, The well aware of the value of presumption in wrong place. Although benefits, these markedly have circum quarrel I cannot concept with the that the grounds upon scribed rein trial court should have some discretion statement can be refused. Reinstate reinstatement, ante ordering I dis- ment can only be refused in extraordi agree denying with the conclusion rein- nary cases —it cannot be merely refused presumptive statement the status of a because it antago would “revive old right which should by be enforced the dis- nisms,” Lewis, and it trict exigent court absent circumstances. positions be refused because the repeat Judge To exposi- Atkin’s excellent wrongfully once held discharged issue, tion of the panel opinion Banks, employees have been filled. appeal:16 provide F.2d at 1165. To otherwise Unconstitutionally discharged employ ignore would the sound maxim that presumptively ees are entitled to rein “[rjelief is not limited to that which will Lewis, statement. See In re pleasing be and free of irritation.” (6th Cir.1988); Banks v. Bur Sterzing Independent v. Fort Bend kich, (6th Cir.1986) District, School (5th Cir. (discharge impermissibly Allen, 1974), approval cited with based on em ployee's exercise of first amendment F.2d at 1305. withdrawn, panel opinion unpublished. and is unemployment the official Rico

In Puerto Further, govern- nearly is 16%.17

rate single employer.18 In largest is the

ment facts, reinstatement not two of these

view required. is With- but

only appropriate, em-

out reinstatement high- Torres has a much

ployment Rosario remaining unemployed for a

er chance than of time elsewhere

longer period Thus, is im-

United States.

perative political discrimination cases Clearly, Rico. the district

arising in Puerto granting rein- reconsider should remedy on remand.

statement

Ill Torres, free from fault but Rosario

Can by a harmed First

egregiously blatant violation, protection have less

Amendment No, liar?

than Loudermill—the merely by defendants Can

be the law. money, repair such trans-

paying brazen

gression, leaving this man to face unem- No, this limbo

ployment ad infinitum? either.

cannot be the law II from all but Part

I dissent

majority opinion. America, Appellee,

UNITED STATES MORIN, Video,

Roger Paris a/k/a Defendant, Appellant. 88-2181, 88-2228.

Nos. Appeals,

United States Court

First Circuit.

Heard June 1989.

Decided Nov. 1988-89, During year year unemploy- the fiscal 23% of Puer- 17. For the fiscal stood rate in Puerto Rico at 15.9%. Puer- ment to Rico to Rico’s were active labor force Department Labor Re- and Human employees. Id. sources, Bureau of Statistics.

Case Details

Case Name: Miguel A. Rosario-Torres v. Rafael Hernandez-Colon, Etc., Appeal of Franklin Martinez-Monge, Miguel A. Rosario-Torres v. Rafael Hernandez-Colon, Etc.

Court Name: Court of Appeals for the First Circuit

Date Published: Nov 8, 1989

Citation: 889 F.2d 314

Docket Number: 87-2096, 87-2097

Court Abbreviation: 1st Cir.