This сase comes to us on an interlocutory appeal and requires us to determine whether the defendants, Sila M. Calderón (“Calderón”), Governor of Puerto Rico, Xavier González-Calderón, current Executive Director of the Human Resources and Occupational Development Council, and Victor Rivera, Secretary of Labor and Human Resources of Puerto Rico, (collectively “defendants”), 1 are entitled to qualified im *20 munity in a case brought by Plaintiffs Janet Santana (“Santana”), former Executive Director of the HRODC, and her husband, Esteban Pérez. 2 Santana sued the defendants under 42 U.S.C. § 1988 and the corresponding laws of the Commonwealth of Puerto Rico, seeking injunctive relief and compensatory and punitive damages. The complaint alleged (1) that defendants violated Santana’s First Amendment rights by politically discriminating against her and creating a hostile work environment which culminated in her dismissal from her position as Executive Director of the Human Resources and Occupational Development Council (“HRODC”); (2) that the defendants conspired to remove her from her position as Executive Director of the HRODC based solely on her political affiliation; and (3) that her dismissal violated her Fourteenth Amendment due process rights because she had a property interest in her position. On defendants’ motion to dismiss, the district court granted the defendants qualified immunity on the political discrimination claim, but denied qualified immunity on the Fourteenth Amendment due process claim. The defendants appealed this denial of qualified immunity. We conclude that the district court erred in rejecting the claim of defendants to qualified immunity on the due process claim of plaintiffs.
I.
In 1998, the United States Congress passed the Workforce Investment Act (WIA), 29 U.S.C. §§ 2801-2945 (2003), to
provide workforce investment activities, through statewide and local workforce investment systems, that increase the employment, retention, and earnings of participants, and increase occupational skill attainment by participants, and, as a result, improve the quality of the workforce, reduce welfare dependency, and enhance the productivity and competitiveness of the Nation.
29 U.S.C. § 2811. To be eligible to receive federal funds under the WIA, a state must submit a State Plan outlining a five-year strategy for the statewide workforce investment system. The WIA requires the Governor of each state to establish a state Workforce Investment Board (WIB) to assist in the devеlopment of the State Plan. The WIB consists of the Governor, two members of each chamber of the State legislature, and representatives appointed by the Governor, including representatives of business, chief elected officials of municipal and county governments, representatives of labor unions, individuals or representatives of organizations that have experience with youth activities and education, and State agency officials with responsibility for related programs and activities. 29 U.S.C. §§ 2821-2822.
To assist him in fulfilling his duties under the WIA, the former Governor, Pedro Rosselló, designated the HRODC by executive order as the depository and administrator of the funds that Puerto Rico received pursuant to the WIA. The HRODC is an agency attached to the Department of Labor and Human Resourcеs of the Commonwealth of Puerto Rico, created pursuant to 18 P.R. Laws Ann. § 1584 (2002) to be the governing body of the Occupational and Human Resources Development System: a “conglomerate of agencies, programs or operating units that, directly or indirectly, offer services related to non-university technological-occupational education.” 18 P.R. Laws Ann. § 1581 (2002). The HRODC “shall retain the *21 counseling, coordination, and establishment of public policy functions and shall be the regulatory and supervisory entity of the [ ] system.” 18 P.R. Laws Ann. § 1584. The HRODC is composed of the Secretary of Education, the Secretary of the Department of Family, the Secretary of Economic Development, the Secretary of Labor, three representatives from the private sector, and three reprеsentatives of the public interest. 18 P.R. Laws Ann. § 1584. The HRODC is responsible for, inter alia, developing and implementing public policy with respect to occupational education, administering a $300 million dollar annual budget comprised of federal funds disbursed under the WIA, evaluating and approving requests for such funds, evaluating and auditing programs and services receiving such funds, and submitting periodic reports to the Governor and the legislature regarding the achievement of the objectives and purposes of the WIA. 18 P.R. Laws Ann. § 1585 (2002). The Executive Director of the HRODC “shall direct the administrative and operating functions of the Council,” 18 P.R. Laws Ann. § 1584, and, according to the Governor’s Executive Order, “shall be responsible and accountable to the [WIB] for the receipt, custody and disbursement of the federal funds received pursuаnt to the WIA.”
A. Santana’s Employment
Santana began working as a public servant in 1994 at the Puerto Rico Department of Education. From January 1997 until July 2000, she worked in the Office of the Governor as Advisor to the Governor on Federal Affairs. In May 2000, Santana was appointed as a member of the WIB, a position she still holds. In July 2000, Santana was appointed by then-Governor Ros-selló as Executive Director of the HRODC and was confirmed by the Senate of Puerto Rico for a four-year term which was to expire in July 2004. In November 2000, defendant Calderón was elected Governor of the Commonwealth of Puerto Rico, and in January 2001, she took office. 3 Calder-ón appointed co-defendant Rivera as the Secretary of Labor and Human Resources. Co-defendant González-Calderón had been the Regional Director of the Carolina-Trujillо Alto Consortium of the WIB. After Governor Calderón won the gubernatorial election, she appointed González-Calderón Auxiliary Secretary of Planning and Special Assistant of Federal Affairs for the WIB.
In her complaint Santana alleges that after the elections and Rivera’s appointment as Secretary of Labor and Human Resources, she was subjected to “an intense persecution and harassment campaign for her political affiliation as member of the NPP.”
4
Santana v. Calderon,
B. Procedural Posture
On December 17, 2001, Santana filed a second amended complaint in the United States District Court for the District of Puerto Rico seeking injunctive relief 5 as well as compensatory and punitive damages under 42 U.S.C. §§ 1983,1985(8), and corresponding laws of Puerto Rico, for assorted violations of her rights. On December 21, 2001, the defendants filed a Rule 12(b)(6) motion to dismiss the amended complaint on the following grounds: (1) Santana’s position as Executive Director of the HRODC is a trust position and therefore political affiliation is a justifiable ground for dismissal in the interest of public policy; (2) Santana did not have a property interest in her position and, thus, could not have been deprived of her right to due process under the Fourteenth Amendment; and (3) defendants in their individual capacities are entitled to qualified immunity. 6
The district court found that
there can be little doubt that the HRODC helps shape Commonwealth policy. However, the Court cannot see, at this point in the litigation, how the position of Executive Director is a “political” one.... For this reason, the Court denies Defendants’ claims that the position of Executive Director of the HRODC is a political or trust position thus preventing Plaintiffs to state a claim for political discrimination.
Santana,
II.
“Qualified immunity specially protects public officials from the specter of damages liability for judgment сalls made in a legally uncertain environment.”
Ryder v. United States,
III.
The defendants are entitled to qualified immunity unless (1) the facts alleged show the defendants’ conduct violated a constitutional right, and (2) the contours of this right are “clearly established” under then-existing law so that a reasonable officer would have known that his conduct was unlawful.
Dwan v. City of Boston,
A. Did the conduct alleged violate Santana’s constitutional right?
Santana asserts that the defendants violated her Fourteenth Amendment right to due process when they terminated her employment without affording her a pre-termination hearing. This claim rests on the proposition that Santana possessed a property interest in her employment as Executive Director of the HRODC. Under the Fourteenth Amendment, a state is prohibited from discharging a public employee who possesses a property interest in continued employment without due process of law.
Cleveland Bd. of Educ. v. Loudermill,
1. The Enabling Statute
The position of Executive Director of the HRODC is statutorily created. The relevant statute provides:
The Governor shall appoint an Executive Director with the advice and consent of the Senate for a term of four (4) years and until his/her successor is appointed and takes office, who shall direct the administrative and operating functions of the Council.
18 P.R. Laws Ann. § 1584 (emphasis added). The district court compared this language of the statute with the language describing the appointment of some of the members of the HRODC. Section 1584 goes on to provide that certain members of the Council “shall be appointed for a term of five (5) years each and shall hold office until the expiration of their respective appointments, or until their successors are appointed and take office.” Id. (emphasis added). The district court ascribed great' significance to the use of the word “or” in the description of the Council members appointments, versus the use of the word “and” in the description of the Executive Director’s appointment. The district court reasoned:
[T]he board members are appointed to a term that will last for five years or until someone has been appointed to and subsequently does actually replace them. Therefore the word “or” signifies that this position can be held for a term no longer than five years and potentially shorter dependant upon the Governor’s desire. The Executive Director, however, is appointed to a term that will lаst for four years and until someone has been appointed to and subsequently does actually replace him or her. Therefor, [sic] the word “and” signifies that this position will be held for a term of at least four years if not longer, de-pendant upon the Governor’s desire.
Santana,
The district court’s interpretation of the statute draws large conclusions from a subtle deviation in the statute’s language. We question whether these subtleties can bear such weight. The Governor of Puer-to Rico has a general power of removal that is statutorily derived. “The Governor shall have power to remove any officer whom hе may appoint, except officers whose removal is otherwise provided for by the Constitution, and he may declare the office vacant and fill the same in the manner provided by law.” 3 P.R. Laws Ann. § 6 (2002). The language “in the manner provided by law” indicates that the legislature may specify how an officer appointed by the Governor is to be removed. However, this language seems to contemplate an explicit statutory statement from the legislature on this issue. If the legislature is going to circumscribe the Governor’s general power of removal, it arguably must do so with greater clarity and explicitness than the language found in the statute providing for the appointment of the Executive Director of the HRODC.
In fact, there are many examples of the legislature speaking with clarity to limit thе Governor’s power of removal in the context of other statutorily-created positions involving gubernatorial appointments. See, e.g. 23 P.R. Laws Ann. § 62e (2002) (“The Governor may remove any member [of the Puerto Rico Planning Board] for good cause upon due notice and hearing.”); 29 P.R. Laws Ann. § 64 (2002) (“The Governor may remove any member of the [Labor Relations] Board, upon notice and hearing, for negligence or malfeasance in the performance of his duties”); 1 P.R. Laws Ann. § 252 (“The Governor may remove any member of the Food and Nutrition Commission from office for negligence in the performance of his/her duties, conviction of a felony or misdemeanor that implies moral turpitude, and mental disability decreed by a court.”).
Hence, solely as a matter of statutory interpretation, there are gоod reasons to question whether the Puerto Rico legislature provided Santana with a property interest in her job. However, even if we assumed that in drafting 18 P.R. Laws Ann. § 1584 the legislature intended to limit the Governor’s power to remove the Executive Director at will, the issue of whether Santana has a constitutionally-protected property interest would not be resolved. At oral argument, Santana sensibly conceded that if the Executive Director position is subject to the Governor’s constitutional power of removal, the legislature’s attempt to insulate the position from removal at the will of the Governor would offend the principle of separation of powers imbedded in the Puerto Rico constitution. Thus, we must consider the scope of the Governor’s constitutional power of removal.
2. The Governor’s Constitutional Power of Removal
The Governor’s removal power is implicit in Article IV, § 4 of the Constitution of *26 Puerto Rico. 8 However, the Puerto Rico Supreme Court has not yet spoken on the scope of the Governor’s power of removal under the Constitution. Nonetheless, both parties posit that the Governor’s power of removal is analogous to the President’s power under federal law. In Quiles Rodriguez, the district court emphasized this analogy:
[UJnder the Puerto Rico Constitution, the authority of the Governor to carry out appointments is analogous to that of the President of the United States. In addition, it is well established that the executive function of appointing functionaries was incorporated in to the Puerto Rican Constitution via federal statute, case law, and doctrine, so it is not uncommon that the Court look to federal case law in its effort tо interpret the law and the Constitution to resolve this debate.
Quiles Rodriguez,
Article II of the United States Constitution grants the President the power to nominate and, with the advice and consent of the Senate, to appoint officers of the United States. U.S. Const, art. II, § 2, cl. 2. Although the Constitution is silent as to the President’s removal power, it is well-established that “in the absence of any specific provision to the contrary, the power of appointment to executive office carries with it, as a necessary incident, the power of removal.”
Myers v. United States,
The scope of the President’s power of removal developed in a trilogy of eases: (1)
Myers,
(2)
Humphrey’s Executor v. United States,
In
Myers,
the Supreme Court considered the validity of a federal statute providing that postmasters could be removed by the President only “by and with the advice and consent of the Senate,” but that until so removed, they could hold office for four years. Concluding that Congress could not limit the President’s power to remove an executive official, the Court held that the statutory restrictions limiting the President’s power to remove officers he had appointed were unconstitutional.
Myers,
The Court limited its expansive holding in
Myers
in
Humphrey’s Executor.
In
Humphrey’s,
the President removed Humphrey from his position as a member of the Federal Trade Commission (FTC) for po-
*27
litieal reasons, rather than for reasons provided for by the FTC Act. The FTC Act gave the members of the FTC a seven-year term and provided that the President could remove any commissioner for “inefficiency, neglect of duty, or malfeasance in office.”
Humphrey’s,
The Supreme Court further developed this distinction between purely executive officers and those that perform quasi-judicial or quasi-legislative functions in
Wiener,
a case involving the President’s dismissal of a previous President’s appointee to the War Claims Commission because the President wanted to replace him with his own appointee. The relevant statute provided that the Commissioner’s term was to expire with the life of the Commission but was silent with regards to removal. Thus, the statute placed no express restriction on the President’s removal power. However, the Supreme Court determined that “[t]he Commission was established as аn adjudicating body with all the paraphernalia by which legal claims are put to the test of proof,”
Wiener,
Judging the matter in all the nakedness in which it is presented, namely, the claim that the President could remove a member of an adjudicatory body like the War Claims Commission merely because he wanted his own appointees on such a Commission, we are compelled to conclude that no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it. The philosophy of Humphrey’s Executor, in its explicit language as well as its implications, precludes such a claim.
Id.
The Supreme Court reevaluatеd the President’s power of removal in
Morrison v. Olson,
while upholding the constitutionality of the Independent Counsel Act. The Act created an Independent Counsel to investigate and prosecute certain cases in which officials within the executive branch were involved, and provided that the Attorney General could only remove the Independent Counsel for cause. The Supreme Court stated that its removal jurisprudence is designed “to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”
Morrison,
These Supreme Court cases suggest that the question of the Governor’s power to remove the Executive Director at will distills to (a) whether the Executive Director of the HRODC is a purely executive position that (b) entails policymaking or administrative authority such that (c) the Governor’s obligation to execute the laws would be hindered by her inability to control the occupant of the position.
Respectfully, the district сourt’s various conclusions concermng the extent to which the position of Executive Director is a policymaking position point in different directions. First, in rejecting defendants’ motion to dismiss the political discrimination claim on the ground that the Executive Director was a “political position,” the district court concluded that “there can be little to no doubt that the HRODC helps shape Commonwealth policy. However, the Court cannot see, at this point in the litigation, how the position of Executive Director is a ‘political’ one.”
Santana,
does not mean that the position did not entail at least a “modicum of poliсy making,” or provide the holder with access to confidential documents.... More importantly, the law is not so clearly established that someone in Defendants’ position would not believe that the Executive Director’s position was a “trust” or “political” position, thus evoking the protections of qualified immumty-
Id. at 180. By contrast, in denying qualified immunity on the due process claim, the court failed to similarly consider whether someone in defendants’ positions would believe that the Executive Director’s position was a “political” position subject to termination at the will of the Governor, and therefore not a constitutionally-protected property interest.
In terms of the Morrison test, the position of Executive Director of the HRODC seems purely executive in the sense that it involves no quasi-judicial or quasi-legislative functions. The HRODC is an agency of the Department of Labor and Human Resources, and the position of Executive Director was created to “direct the administrative and operating functions” of the HRODC. 18 P.R. Laws Ann. § 1584. The Executive Director is appointed by the Governor. It is not a “career” position under the Puerto Rico Public Service Personnel Act. 9 3 P.R. Laws Ann. § 1301 (2002). Therefore, the Executive Director does not enjoy the statutory protections afforded to career civil servants. The Governor determines the Executive Director’s remuneration.
As Executive Director, Santana received proposals from each of the fifteen regional boards of the “occupational and human resources development system” and reviewed each proposаl to ensure that it complied with the Puerto Rico WIB’s five-year State Plan for workforce investment. Once she reviewed a proposal she would submit it to the Puerto Rico WIB for approval. The Executive Director is also responsible for reviewing each regional board’s application for funds and auditing the regional boards for accountability and compliance with federal and Commonwealth regulations. The Executive Di
*29
rector monitored technical assistance to regional boards, monitored various federal funds allocated to the Department of Education and the Family, and was responsible for training the regional boards on administrative and management issues in compliance with federal and Commonwealth regulations.
Santana,
While many of these duties are рrimarily administrative, the control over allocation of substantial federal funds and the power to review the regional board’s proposals for workplace investment involve policymaking on issues of fundamental concern to the Governor: economic development, job creation and job training. Moreover, the Executive Director’s responsibility for the receipt, custody and disbursement of the federal funds pursuant to the WIA, and her duty to audit the regional boards for accountability and compliance with federal and Commonwealth regulations, make the position important to the Governor’s constitutional obligation to faithfully execute the laws in these areas of central concern.
Importantly, the statute establishing the Executive Director position is distinguishable from the statute at issue in Morrison. In Morrison, the statute establishing the Independent Counsel provided for termination for “good cause.” As the Supreme Court noted:
This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.
Morrison,
B. Was Santana’s property right clearly established?
The Supreme Court held in
Saucier
that “the requisites of a qualified immunity defеnse must be considered in proper sequence.” Thus, the threshold question of whether “the facts alleged show the [defendants’] conduct violated a constitutional right ... must be the initial inquiry.... The next sequential step is to ask whether the right was clearly established.”
Saucier,
Our primary responsibility in a case such as this is to see that the federal law of qualified immunity is properly applied without presuming to opine on sensitive matters of Commonwealth constitutional law in a case where it is unnecessary to disposition of the appeal, and in which our own prediction оne way or the other would not alter our analysis of or decision upon the federal issue. The first step of the qualified immunity analysis — whether Santana has alleged a constitutional violation' — -turns on whether the Governor of Puerto Rico has the constitutional power to terminate her employment at will, despite the statute stipulating a four-year term for the position of Executive Director. Under other circumstances, we might choose to certify this issue to the Puerto Rico Supreme Court. At issue is a fundamental point of Commonwealth constitutional law on which there is no precedent.
E.g. Wigginton v. Centracchio,
“[Qjualified immunity operates ‘to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful.’ ”
Hope v. Pelzer,
IV.
For the reasons stated, we reverse the district court’s denial of qualified immunity on the ground that, at the time of the defendants’ conduct, the property right at issue was not clearly established under the law of Puerto Rico. Only the Supreme Court of Puerto Rico can definitively resolve this property right issue. Therefore, we urge the district court, as it prоceeds with the suit for injunctive relief and the other claims against the defendants, to consult with the parties about the appropriateness of certifying to the Puerto Rico Supreme Court the Commonwealth constitutional issue relating to the removal power of the Governor.
The district court’s order denying defendants qualified immunity on Santana’s due process claim is reversed.
So ordered.
Notes
. Defendants Calderón and Rivera were sued in both their individual and official capacities. However, because the only issue before us on interlocutory appeal is that of qualified immunity, we address the defendants only in their individual capacities.
Brandon v. Holt,
. Because the claims brought by Santana’s husband are derivative of Santana’s claim, we designate Santana the "plaintiff” and refer to the co-plaintiff by name where necessary.
. Both Santana and former Governor Rossel-16 are members of the New Progressive Party (NPP). Governor Calderón is a member of the Popular Democratic Party (PDP).
. Because the qualified immunity issue before us does not involve Santana's claim that the defendants politically discriminated against her and created a hostile work environment which culminated in her dismissal from her position as Executive Director of the HRODC, we recite the facts specific to this claim only to provide context for Santana's due process claim.
. In her complaint, Santana claims she is entitled to "complete restitution of her position with salary, duties, responsibilities of said position.... Plaintiff is also entitled to injunctive relief enjoining defendants from further discrimination against her because of her political beliefs and association now and in the future.”
. The defendants also claimed that Santana has not demonstrated that defendant Gonzá-lez-Calderón had any personal involvement in the alleged violations; that the allegations fail to state a claim for conspiracy under either § 1983 or § 1985(3); and that Plaintiff Esteban Pérez lacks standing to bring suit. The district court denied defendants’ motions on all these grounds with one exception: the district court granted defendants' motion to dismiss Santana’s claim of conspiracy under § 1985(3) (but denied the motion to dismiss the claim of conspiracy under § 1983).
Santana,
. In
Quiles
the district court held that the Chair of the Public Service Commission, an employee appointed by the Governor to a term position, cannot be terminated at the will of the Governor before the end of his term. The relevant statute in
Quiles
provides that "the Commissioners first appointed [by the Governor] shall hold office for terms of
*25
two, three, and four years, respectively. The term for each one shall be fixed by the Governor, but their successors shall be appointed for a term of four years."
Quiles,
. Article IV, § 4 provides in relevant part:
The Governor shall execute the laws and cause them to be executed.
He shall appoint, in the manner prescribed by this Constitution or by law, all officers whose appointment he is authorized to make.
. Career positions are those filled aсcording to competition with other candidates for the position and performance on a civil service exam. The candidates are drawn from a formal registry of eligible candidates. 3 P.R. Laws Ann. § 1333 (2002).
. In the district court, Santana invoked a liberty interest as well as a property interest with her due process claim. The district court declined to decide whether a liberty interest was involved or address any consequent qualified immunity issue with respect to it. Instead, it explained that by sustaining the property based due process claim, it had "mooted” the liberty based version. Neither side has seriously discussed the liberty based claim on this appeal and we do not address it. To the extent that Santana desired to pursue such a claim on remand, the defendants are free to assert their qualified immunity defense and appeal if it is rejected; but we will not anticipate issues that have not been addressed by the district court or briefed by the parties.