William Mariani-Giron v. Heriberto Acevedo-Ruiz, Etc.

MARIANI-GIRON, al., et William

Plaintiffs, Appellees, al., ACEVEDO-RUIZ, etc.,

Heriberto et

Defendants, Appellants.

No. 88-1588. Appeals,

United States Court

First Circuit.

Heard Oct.

Decided June Smith, Jr., Juan, P.R.,

Paul B. San Cruz, whom Hector Rivera Secretary of Justice, Carrion, Gen., Rafael Ortiz Sol. Saldana, Jose Rey, Hamid Rivera and Mor- Alvarado, P.R., Rey, & Hato were on brief, defendants, for appellants. Rodriguez Garcia, P.R., Ponce, Frank ’ plaintiffs, appellees. CAMPBELL, Judge, Before Chief TORRUELLA, COFFIN and Circuit Judges. CAMPBELL,

LEVIN H. Chief Judge. Plaintiff William brought (1982) under 42 action U.S.C. defendant, alleging that Heriberto the director of Puerto Rico’s Commonwealth Civil Defense Agency (“CDA”), rights violated his under the First and Fourteenth Amendments in dis- charging from as a zone coordinator the CDA. After the dis- trict court denied summary judgment ground on the 1H5 immunity, preliminary injunction. Ruiz filed this issuance of the Acevedo Mitchell v. For Ruiz, See interlocutory appeal. Mariani Giron v. Acevedo 834 F.2d 511, 524-30, 2806, (1st 105 S.Ct. syth, Cir.1987).2 472 U.S. 238 Acevedo Ruiz then (1985); Unwin v. 2814-17, 411 86 L.Ed.2d summary moved the district court for (1st 124, Campbell, 863 130-33 Cir. F.2d judgment, arguing that he was entitled 1988). Ruiz is hold Acevedo enti We qualified immunity from Mariani Giron’s qualified immunity and reverse the tled to damages. for claim The court de- district court. district motion, this nied and Acevedo Ruiz filed appeal. interlocutory this Giron, 18, 1980, April an ac- On Mariani of Rico’s New ‍​​​‌‌​​‌‌​​‌‌​​​​‌​‌​​‌‌‌‌‌​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‍Pro- member Puerto tive (“NPP”), appointed Party was gressive I. of Ponce zone coordinator the A is threshold issue this whether municipali- 16 encompasses the CDA appeal appellate is jurisdiction. within our gubernatorial In the November 1984 ties. power A court of appeаls lacks entertain Rico, Popular Demo- election in the appeal specified from a who not (“PDP”) Party defeated the NPP. cratic Torres v. Oakland appeal. the notice of thereafter, elected Shortly newly Gov- the — Scavenger Co., -, U.S. 108 S.Ct. Ruiz, a member ernor 2405, 2408-09, 101 Kai (1988); L.Ed.2d 285 PDP, In the as director of the CDA. a of Industries, Inc., Armstrong ser v. World 1985, 28, March Acevedo Ruiz

letter dated (1st Cir.1989); Vega Gonzalez 872 F.2d 512 Giron, stating discharged Mariani as the Colon, v. 519, (1st Hernandez 519 the discharge only рosi- for the reason Cir.1989); Martinez v. Santos Soto Santi of zone coordinator was classi- tion F,2d 174, (1st Cir.1988). ago, See 863 175 position fied as a “trust or confidence” Fed.R.App.P. 3(c). case, caption In this the 3, 1349-1351 under P.R.Laws Ann. tit. appeal the May notice of dated 1985, (1978). 11, April Mariani Giron’s On identified defendants as follows: filled a member of former was PDP. ACEVEDO-RUIZ, AL ET HERIBERTO brought subsequently this alleging Ruiz violated action that Acevedo Defendants rights under his the First Fourteenth body provided perti- notice discharging him from his Amendments part, nent Finkel, position.1 Branti 507, v. 445 U.S. hereby Notice is that defendants 1287, El (1980); 63 L.Ed.2d 574 100 S.Ct. appeal to the United States Circuit Court Burns, 2673, 347, rod v. 427 96 S.Ct. Appeals for the First Circuit from generally (1976). Jim 547 49 L.Ed.2d April order entered in this action on Gaztambide, v. enez Fuentes Torres 807 summary motion denying a banc), (1st Cir.1986) (en cert. de judgment filed defendants on Febru- nied, 481 U.S. 95 ary summary judgment 1988. Said (1987). damages Seeking motion is on defendants’ assertion based position, Maria- reinstatement his former offi- alleged he ni terminated because was Forsyth, cials, 511 Mitchell v. NPP. his affiliation After L.Ed.2d S.Ct. 411] [105 hearing, granted Mariani the district court three There defendants injunction were a total of preliminary Ruiz; Heriberte Acevedo This court affirmed the the action of reinstatement. below: affirming opinion Joining 2. Our issuance Mariani Giron as were his wife, Saes, Conjugal liminary our resolu- Myrta injunction does not control "their Part- Iris addition, immunity on cоmplaint raised nership." In not tion of the issue named Figueroa-Rodriguez Aquino, appeal. Acevedo Ruiz as a defendant but also (1st Cir.1988): wife, Goyco de n. 6 Perez Acevedo Ruiz’s Mabel Aceve- named do, Rivera, Partnership” Conjugal as “their defen- Maldonado Cir.1988). dants. Acevedo; wife, Cir.1988), Mabel Perez and “their “naming [appel- Partnership.” cap- Conjugal Neither caption ... do.” The lant] body appeal tion notice of nor сaption part should looked be at as partnership. or the mentioned the wife notice, entire present notice. Since the in- cluding caption, appellant its names specificity, of this lack Maria- Because defendant, principal appeal to dismiss ni Giron has moved we hold appellate jurisdiction. jurisdiction for lack of While we that we have over Acevedo jurisdiction apparently lack over his wife appeal. conjugal partnership, they

and their as are specified appeal,3 in the notice nowhere of II. jurisdiction over Ruiz. we do have Acevedo caption, in presence of his name rule, general government As a of body in coupled with the statement of performing discretionary ficials functions appeal of the notice that “defendants here- are “shielded from liability civil dam by incorporated appeal,” by refer- ages insofar as their ‍​​​‌‌​​‌‌​​‌‌​​​​‌​‌​​‌‌‌‌‌​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‍conduct does not vio cap- named in ence those defendants clearly late statutory established or consti tion, specificity satisfied as to him the re- rights tutional of which per a reasonable 3(c); quirement say of we Rule cannot that son would have known.” Harlow v. Fitz Ruiz “was never named or other- 2727, gerald, 457 U.S. designated, inartfully, wise however in the 2738, (1982)(citations 73 L.Ed.2d 396 оmit appeal” though notice even “ET AL” of ted). A must “objective court look to the plural and the use of “defendants” left us legal of reasonableness an official’s con remaining as to the doubt defendants duct, by as clearly measured reference to Torres, appeal. seeking 108 at S.Ct. law,” established to determine whether the implicitly This court has held on doctrine of immunity applies. Id. previous appellatе jur- occasions it has that also Anderson v. Creighton, party caption isdiction over a named in the 635, 3034, 107 (1987). S.Ct. 97 523 L.Ed.2d of appeal. the notice of Marin-Piazza v. Mariani Giron’s section 1983 action arises (1st Aponte-Roque, Cir.1989); 432 873 F.2d under the prohib First Amendment which Colon, Santos Martinez Hernandez patronage its the discharge public em (1st Cir.1988); Kaiser v. Arm- ployees except “party where affiliation is Industries, Inc., strong World appropriate requirement an for the effec 512, In these three performance tive office in cases, appeal the intent party Branti, volved.” at U.S. S.Ct. caption named in was manifest from a Elrod, at 1294. See also at 367- reading body appeal of the notice of 68, 96 Ruiz S.Ct. at 2686-87. Acevedo ar caption. Nicks, and the See also Ford v. gues that he is entitled to immuni (6th Cir.1989)(ruling, 866 F.2d 869-70 because, ty time of Mariani Giron’s discussion, without named in March the law was not specified caption had a party been as clearly established that affiliation taking appeal); Pipe Cotton U.S. & appropriate requirement was not an for the Co., Foundry 160-63 performance effective Cir.1988) (court jurisdiction par- has over coordinator for the Ponce re ties on appeal”). “named face of the While gion. separate- each situation be looked at ly, disagree generaliza- we This court has recently with the blanket described tion in Allen Archery, inquiry Inc. v. Precision in the context of Equipment, Inc., Shooting political firings which occurred in 1985: jurisdiction by Whether over ed down [the district court] conjugal partnership Ruiz's belonging wife is im- property have to be executed on the they personal Conjugal Society material since no had involve- to the Acevedo-Perez....” conduct; alleged illegal liability damages ment in the purportedly wholly were Their is thus deriv- because, damages being named as defendants ac- ative against an award entered cording complaint, "[a]ny judgment to the hand- Acevedo Ruiz.

1H7 question preparation is “whether the time stant ... a well-trained and or- [at it was organization which, ientated dismissal] case of a particular posi- employees grave Island, abnormality in our knows tions issue, light responsibili- rapidly how to and сan act and effective- positions, pro- ties inherent in those were ly to ward off evil. patronage tected from dismissal.” ... P.R.Laws tit. 171a To § enjoys “qualified defendant immuni- [A] accomplish task, this vital the Act created “poten- ty” long question as the the CDA which is attached to the Gover- tially matters of partisan po- concerned nor’s Office. P.R.Laws Ann. litical interest involved at least a 171c. The GDA is headed the Com- § modicum policymaking responsibility, monwealth Director who is or of- information, to confidential access and serves at the pleasure of the Governor. And, communication.” ficial ... we have P.R.Laws Ann. tit. 171d. The Com- normally enjoy said “defendants will empowered monwealth Director is damage liability from regulations adopt scribe and contingency upper-level, managerial-type job in dis- plans in protect order to property lives and сases, missal jobs cases where the in in the event of natural or man-made disas- question purely are not technical or sci- 171e, 171f, ters. P.R.Laws Ann. tit. §§ in entific nature.” 171n. Under the Act as well as these Figueroa-Rodriquez Lopez-Rivera, v. plans, and the CDA is 1478, 1480 (1st Cir.1989) (en banc) (em ‍​​​‌‌​​‌‌​​‌‌​​​​‌​‌​​‌‌‌‌‌​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‍ wide-ranging powers respond to it to allow phasis original) (quoting Mendez-Palou v. in disasters, quickly effectively and to and in Rokena-Betancourt, coordinating operations. rescue P.R.Laws Juarbe-Angueira (1st Cir.1987), v. and 171e(G), 171j, 171k, §§ Arias, (1st Cir.1987), cert. grants 171m. The Act also the Governor — denied, -, sweeping powers “in situations emer- Figueroa-Ro See also (1988)). gency or disaster” may del- “[h]e driquez Aquino, v. 863 F.2d 1037 egate to the Commonwealth and Director subsequent delegations any establish au- Applying these criteria to the instant thority upon conferred chap- this case, we do not think it was estab- 171s, ter.” 171q, P.R.Laws Ann. tit. lished March 1985 that affil- 17It. requirement iation was not a for Mariani As a zone coordinator for the Ponce re- job. Puerto Rico Civil Defense gion, Mariani Giron was at the fifth level of public policy Act states that it is the organizational CDA’s structure.4 Accord- provide Commonwealth to ing testimony to Mariani Giron's at necessary protection all measures for the preliminary injunction hearing, his duties safety people and of the Puerto Rican as a zone coordinаtor were follows:5 any emergency situation of or disaster A. Administrative Functions. Maria- ends, may affect them. To such directed, ni basically organized Government of the Commonwealth of and contemplates keep developed programs Rico con- Civil Defense tion, 4. The record indicates that the chain of com- Mariani Giron testified as to how the 1) mand above Mariani Giron was the Gover- performed duties he аs zone coordinator com- nor; CDA; 2) the Commonwealth Director of the pared predeces- to the duties described in his Director; 3) the Assistant Commonwealth and job description. analysis sor’s In our 4) Operations. the Assistant Director of case, qualified immunity question in this adopt Mariani Giron’s of his version inherent many political firing 5. Unlike cases which duties, job resolving any ambiguity regarding court, see, Mendez-Palou, e.g., reached Figueroa-Rоdri- those duties in his favor. See 813 F.2d at not contain record does guez Aquino, (although 863 F.2d at 1041 some plaintiffs job description, although official dispute regarding job respon- plaintiffs facts in job descrip- the record does contain the official sibilities, plaintiffs predecessor. hearing defendant was entitled to im- tion of on theAt evidence). preliminary injunc- munity for a version of the This in- municipalities his zone. Civil Voluntary Corps minister Defense taking рart developing 1) and municipality. cluded for each “emergency plans pursuant to executing view, In our the CDA’s zone coordinator “communications;” 2) dealing in needs;” job for the Ponce “po holds pro- 3) submitting reports regarding a tentially po matters concem[s] 4) defense; radiological coordi- gram for interest_” litical Figueroa-Rodriguez pro- educational nating the attendance Lopez-Rivera, (emрha 878 F.2d at 1480 directors, volunteers grams local and original). upper management sis in It is an 5) possibly supervising personnel; other agency required in an level to dis municipalities indirectly the charge responsibilities vital in concert with directing, organizing in the context municipalities agencies, state and local and programs. Civil developing Defense performance during emergen and whose and Nuclear Disasters. B. Natural great cies attract attention and prepared, coordinated and scrutiny. being Rather “purely than tech “operational plans the zone evaluated nature,” or nical scientific in in organized developed He level.” “at volves least a of policymak- modicum and drills to test the practice rehearsals ing responsibility, access confidential in adequacy effectiveness formation, or official communication.” Id. meetings He also held and resources. original). (emphasis As a zone coordina Emergency the Zone Committees tor, Mariani Giron was the Commonwealth municipalities “in order hand and the representative Director’s in the Ponce re counseling in accord- out instructions gion. According testimony, to his own he ance the norms.” with was the “voice” of CDA’s the Common orga- Operations. Mariani Giron C. region. wealth Dirеctor in the Ponce Mar- nized, opera- and directed coordinated iani also that testified his inherent pursuant zone level to estab- tions at the part in some developing duties involved and adapted specific policies to situa- lished executing emergency plans, as pre well as assignment, coordinated the He tions. paring, coordinating evaluating “opera and tasks, delegation jobs, distribution of and tional at the level.” Although zone agencies, individuals, assignments to and large his duties were in measure limited to emergen- and associations institutions coordinating executing previously and es and also cy operations, coordinated the policies, tablished and he had human, utilization of fiscal and material authority organize, to direct and coor organized He resources. and coordinat- operations pursu dinate ‍​​​‌‌​​‌‌​​‌‌​​​​‌​‌​​‌‌‌‌‌​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‍zone level and participation ed of state local policies adapted ant spe to established to provide agencies in order to essential ser- situations, potentially thus giving prop- cific and lessen loss of life and vices leeway when confronted with unfore erty and uneasiness. emergencies. Finally, seen while not deter D. Communications. in deciding minative whether Acevedo Ruiz promoted and studies оf recommended is entitled to immunity, give we promoted facilities communication deference” posi “some to the fact that the sys- of radiotelephone the installation tion of zone was one coordinator of “trust tems, microwave and other means to or or confidence” under the Puerto Rico Pub critical emer- be used in situations and Act, lic Service Personnel P.R. Laws Ann. prepared also gencies. Hе sub- Figueroa-Rodriguez 1349-1351. plans. mitted communications v. Lopez-Rivera, 1481; 878 F.2d at Jimenez addition, In P.R. Ann. tit. Laws Fuentes, 807 F.2d at 246. Giron, 171p, Mariani as a zone coordina- sure, tor, municipal public supervised and advised the To be is a safety regard- “political” agency presumably civil defense directors in his not ing responsibility organize their and ad- sense the word.6 traditional Plain- Indeed, who, any person it a the Puerto Rico Civil Defense Act makes misdemeаnor for public, sensitively to the and therefore member tiff, however, an active had been Governor, public’s previous perceptions account of the take the NPP when also, had department of the NPP of the manner which the member zone coordinator job of CDA responsibilities. him. The fulfills its matters “potentially concern[s] reasoning applies equal Because this same sense that in the political interest” coordinators, to the CDA’s we force Figueroa-Rodriguez chiefs the zone fire clearly say it was established at the cannot Lopez-Rivera, 878 at 1484held such discharge that the time of Mariani Giron’s jobs: coordinator was not position of CDA zone major service-ori- officials of High level upper management po level one of “those municipal and state departments ented newly governor elected must sitions that adequately take into government option constitutionally allowed the be needs, competing public match- account colleagues if mean filling with like-minded They resources. ing them with available ing given to the electoral man is to be anticipated, sensitivity to must react with Aquino, Figueroa-Rodriguez date.” actual, of their deci- public criticisms or 863 F.2d at 1041. See also Juarbe-An say is sions—all 831 F.2d at 13-14. gueira, jobs. As the politically sensitive the law did not Our view City Chicago, in Tomczack v. court is prohibit Mariani Giron’s Cir.1985)recognized, supported by opinion court’s strongly (technical- high official in a that a believe Jesus-Mendez, in Cordero v. De sewer department, or sounding) water (1st Cir.1989).7 Cordero, held that In we similar parks department, or authority, defendant, Mayor Municipali- qualities possess these activity need Moca, Rico, not violate the ty of did realities of understand the is to fail to rights in plaintiff’s First Amendment dis- course, recog- we political life. Of local municipal- charging him from his police department, like a nize that a fire policy- director ity’s civil defense mostly agency that is department, is an job.8 at 12-13. making nature of the Id. safety law en- concerned with ruling, regarding This But, do not believe that forcement. in the in- comparable to the one at issue distinction to make fact alone a sufficient case,9 Ruiz’s claim difference, stant bоlsters respect not in at least immunity. discharge If the respond quite high officials who disaster, orga- contingency plans of a in the event ‘‘[b]eing employee civil defense nization, participates politico-partisan assuring activi- such are in accordance with pressure political while in the contingency plans. municipal and exerts ties discharge CDA's tit.25, of his work.” P.R.Laws subject agencies may prescribe, apрroval also 171y(d). § Director, Commonwealth municipali- necessary for the civil defense brief, several deci- Mariani Giron cites 7. In his ty. 171o. § P.R.Laws Ann. Supreme Court of Puerto Rico to sions of the argument Constitu- support that the federal 9.Although at the Mariani Giron testified discharge. clearly prohibited his While we tion hearing liminary injunction that he had no di- per- these decisions for their will consider municipal authority di- effect, over civil defensе rect rectors, "they as to the are not conclusive suasive respect [plaintiff] zone coordi- was fired” as at least in one of the law when state "go authority municipal and dis- supervisory than do most circuit further over nator has interpretations in re- of Elrod-Branti responsibility trict court directors: "It shall be higher firings fusing to allow organize Municipal and ad- Defense Director to Rodriguez Rodriguez government.” levels Corps Voluntаry sub- Civil Defense minister the Munoz, Munoz ject supervision and advice the Zone to the Juarbe-Angueira, F.2d at 14. See also Agency.” P.R. the Commonwealth Director of added). 171p (emphasis Ann. tit. Laws Act, each Puerto Rico Civil Defense 8. Under the brief, po- (Accordingly "[t]he to Mariani Giron’s municipality is to estab- in the Commonwealth designated ‘Zone Director’ before sition was Agency” "Municipal admin- Civil Defense lish a changed to ‘Zone Coordina- it wаs when appointed by by municipal director istered tor’....”) Mayor with the Commonwealth "in consultation prepare municipal agency is to Each Director." partisan municipal prohibitions, civil defense director is not how could one con- standards, under current legal prohibited clude that appropri- affiliation is an legal requirement it cannot be said that under the stan- ate perform- for the effective existing dаrds March 1985 Mariani Gir- ance of his office? How can con- clearly prohibited. on’s was potential siderations even be of concern (col- Juarbe-Angueira, 831 F.2d at 16 also under these circumstances? holding be enti- lecting cases defendant to By today, its decision poli- this court has qualified immunity). tled to ticized a deliberately which was consequently We hold that district ‍​​​‌‌​​‌‌​​‌‌​​​​‌​‌​​‌‌‌‌‌​​‌​​‌‌‌​​​​‌‌‌‌‌‌‌‌​‍Legislature intended of Puerto Rico granting Acevedo court еrred in not non-partisan. to be summary judgment on motion for I dissent. ground entitled to that he was damages in Mariani immunity from action.

section 1983

Reversed.

TORRUELLA, Judge Circuit

(concurring part; dissenting

part).10 INC., WARNER BROS. I in Part I of this concur decision but Plaintiff-Appellant,

respectfully dissent as to the balance of the opinion. Joseph Bainton, Esquire, Appellant, J. I am forced to dissent not I because person am of the view that no reasonable TRADING, INC., DAE RIM and Yun “party could conclude that affiliation is an Cho, Defendаnts-Appellees. Yon appropriate requirement for the effective performance office in- [here] 550, 557, 88-7730, Nos. Dockets 88-7732. Finkel, Branti v. volved,” 445 U.S. United Appeals, States Court of 1287, 1294, 63 100 S.Ct. Second Circuit. (1980), employee that of a fifth level en- gaged non-partisan civil defense activi- Argued Dec. ties, specifically more because no but rea- Decided June person would have sonable concluded that discharging office holder “does not statutory

violate or con- Fitzgerald, Harlow v. rights.”

stitutional 2727, 2738, acknowledges

As the majority in a foot-

note, ante p. 1118 n. it is a crime any per- the law of Puerto Rico for who,

son “[b]eing employee an civil organization

defense politi- participates

co-partisan activities and exerts

pressure while of his

work.” 25 171y(d). appel- L.P.R.A. If

lee’s subject specific to such aged, 10. I take note of the fact that unnecessary this is the second it is because an interlocutory appeal resources, of this case to this court. judicial on our limited drain but also See Mariani Giron v. Acevedo places upon because it an undue burden (1st Cir.1987). practice I piece- believe this economically unequal litigant. interlocutory meal appeals should be discour-

Case Details

Case Name: William Mariani-Giron v. Heriberto Acevedo-Ruiz, Etc.

Court Name: Court of Appeals for the First Circuit

Date Published: Jun 23, 1989

Citation: 877 F.2d 1114

Docket Number: 88-1588

Court Abbreviation: 1st Cir.