Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1864

EVELYN CRUZ-GÓMEZ,

Plaintiff, Appellee,

v.

VÍCTOR RIVERA-HERNÁNDEZ, SHEILA ROBLES-BÁEZ;

CONJUGAL PARTNERSHIP RIVERA-ROBLES; ROMÁN M. VELASCO,

SECRETARY OF THE DEPARTMENT OF LABOR AND HUMAN RESOURCES

OF PUERTO RICO; 

Defendants Appellants,

LUIS PIÑOT-ARECCO, JANE DOE; CONJUGAL PARTNERSHIP

PIÑOT-DOE; GLADYS RIVERA-MEDINA,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Hansen, Senior Circuit Judge. *

Celina Romany-Siaca, for appellants.

Marie Elsie López-Adames, with whom González López & López

Adames, was on brief, for appellee.

April 7, 2006
 Public employees in Puerto Rico are categorized as "career" or 1

"trust/confidential" employees. Colón-Santiago v. Rosario, No. 05-

1238, 2006 U.S. App. LEXIS 4045, at *3 n.1 (1st Cir. Feb. 21,

2006). Trust employees are those who "intervene or collaborate

substantially in the formation of the public policy, [and] . . .

advise directly or render direct services to the head of the

agency." P.R. Laws Ann. tit. 3, § 1350. They are of "free

selection and removal." Id. § 1350. Career employees, by

contrast, are "selected strictly on merit and can be removed only

for cause." Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209,

1213 n.3 (1st Cir. 1989) (citing 3 P.R. Laws Ann. §§ 1301,

1331-1338).

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TORRUELLA, Circuit Judge. This is an interlocutory

appeal in a political discrimination case brought pursuant to 42

U.S.C. § 1983 (2000). Defendant-Appellant Víctor Rivera-Hernández

("Rivera") here appeals the district court's opinion and order

denying his motion for summary judgment. We dismiss for lack of

appellate jurisdiction.

I. Background

Plaintiff-Appellee Evelyn Cruz-Gómez ("Cruz") was hired

on February 1, 1993 as Legal Consultant V, a trust position, by the

Puerto Rico Department of Labor ("PR-DOL"). Cruz was appointed to 1

this position by the New Progressive Party ("NPP") administration

in power in Puerto Rico at the time.

In December 1995 or January 1996, at Cruz's request, the

Central Office for Labor and Personnel Matters reclassified her

position as "Director of the Bureau of Legal Affairs," a career

position. Cruz thereafter occupied the career position of Director

of the Bureau of Legal Affairs. In this job, she performed the
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same functions she had performed as a trust employee. The NPP was

still in power at the time of this change. Furthermore, in 2000,

PR-DOL implemented a Qualification Plan, as a result of which

Cruz's status as a career employee was certified and confirmed.

On November 5, 2000, general elections were held in

Puerto Rico, and Governor Sila María Calderón of the Popular

Democratic Party ("PDP") was elected. In January 2001, Rivera was

appointed by Governor Calderón as the new Secretary of Labor of the

Commonwealth and remained as such until June 2003.

Although Cruz had occupied the career position of

Director of the Bureau of Legal Affairs since late 1995 or early

1996, she claims that her life at PR-DOL changed dramatically after

the PDP victory in 2000 and the installation of Rivera as the head

of PR-DOL. In particular, she states that she began to experience

discrimination at the hands of her colleagues. For example, she

claims that Rivera and Luis Piñot-Arecco ("Piñot"), one of her

supervisors, continuously harassed her by requesting a series of

complicated but useless reports to be completed in short periods of

time. They consistently raised questions about her whereabouts,

and Piñot restricted her to a specific work schedule. Furthermore,

personnel from Rivera's office, instead of interacting with her,

simply ignored her presence and authority as head of the Bureau of

Legal Affairs.
 Rivera simply provided Cruz with a termination letter. Before 2

Rivera gave Cruz this letter, he requested an opinion from the

Central Office for Labor and Personnel Matters on the propriety of

terminating Cruz. In his request, he stated his own opinion on the

propriety of any termination. The Central Office, in its response,

confirmed that Rivera's opinion was correct.

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Cruz states that the most significant change came when

Rivera's Assistant Secretary for Human Resources, Gladys RiveraMedina ("Rivera-Medina"), suddenly concluded, after Cruz had

already served in the same position for more than four years, that

Cruz's change in classification from a trust to a career employee

was null and void given the fact that it was not preceded by the

competition process required for career positions. On August 13,

2002, because it had been determined that Cruz's employment was

null and void, Rivera, without any sort of pre-termination hearing,

removed Cruz from her position as Director of the Bureau of Legal

Affairs.2

As a result of her termination, Cruz, on July 24, 2003,

filed a complaint in the United States District Court for the

District of Puerto Rico seeking compensatory and punitive damages

and reinstatement to her prior position. She alleged violation of

her rights under the First and Fourteenth Amendments of the United

States Constitution. Specifically, she claimed that her political

affiliation with the NPP, which was known to Rivera and the other

defendants she named, all of whom were affiliated with the PDP, was

the reason that she was terminated.
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On January 31, 2005, Rivera filed a motion for summary

judgment, requesting dismissal on the grounds a) that Cruz failed

to show that she was the subject of political discrimination; b)

that Cruz was not entitled to monetary damages from Rivera in his

official capacity; c) that Cruz's right to due process under the

First and Fourteenth Amendments was not violated given her failure

to demonstrate the existence of a cognizable property interest

and/or a legitimate claim of entitlement in continued employment;

d) that Rivera was not liable under the respondeat superior

doctrine; and e) that Rivera was entitled to qualified immunity

given that he had sufficient grounds to believe Cruz's employment

was null and void.

On February 28, 2005, Cruz filed a response in opposition

to the summary judgment motion, alleging that she had established

her case for political discrimination and violation of rights under

the First and Fourteenth Amendments and that Rivera's actions were

not protected by qualified immunity.

On April 18, 2005, the district court found that Cruz was

not entitled to monetary damages from Rivera in his official

capacity as a result of Eleventh Amendment immunity. However, the

court denied the remainder of Rivera's motion, stating that

disputed factual issues still remained and therefore summary

judgment could not be granted. In particular, the court noted,

first, that contrary to Rivera's argument that Cruz failed to show
 The district court noted, for instance, that the record made no 3

mention of whether Cruz took or passed a test to qualify her for

her position. The record was equally unclear as to whether changes

"in the functions or in the organizational structure of the agency"

justified Cruz's reclassification, as § 1351 requires.

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that her political affiliation was a motivating factor behind her

termination, Cruz had "put forward specific allegations which, if

proved at trial, may be probative of discriminatory animus and

suffice for the purpose of establishing a prima facie case of

discrimination." Second, in assessing Rivera's proffered

justification for Cruz's dismissal -- that Cruz was fired solely

because of the nullity of her appointment, not as the result of any

political discrimination -- the court noted that it was "unable to

weigh the import of the Qualification Plan ratification" (which

allegedly confirmed Cruz's career status) since neither party

discussed the Qualification Plan in depth. The court also noted

that Rivera neither conceded nor denied that Cruz satisfied each of

the requirements in P.R. Laws Ann. tit. 3, § 1351 (2004), under

which an employee may be reclassified as a career employee without

being subject to the normal competitive process. This particular 3

deficiency, making it unclear whether Cruz's career appointment

violated the Puerto Rico Personnel Act, led the court to decline to

enter summary judgment on both Cruz's First Amendment and due

process claims. Third, with regard to Rivera's claim of qualified

immunity, the court noted that there was a disputed factual issue
 In its opinion, the district court did not explicitly address 4

Rivera's respondeat superior claim. This, however, does not matter

for the purposes of this interlocutory appeal. As we discuss in

greater depth below, if the district court had addressed Rivera's

respondeat superior claim at the summary judgment stage and decided

it adversely to him, he would not be able to appeal the court's

decision now. Alternatively, if the court had addressed Rivera's

claim and decided it in his favor, he would not have brought this

appeal. At no point, however, does Rivera argue that this appeal

would have been unnecessary if the district court had properly

considered his claim. We therefore decline to consider this

possibility.

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as to whether Rivera's actions were motivated by Cruz's political

affiliation.4

On May 10, 2005, Rivera filed a Notice of Interlocutory

Appeal, contesting the district court's denial of his summary

judgment motion.

II. Discussion

On appeal, Rivera rehashes the same arguments he made

before the district court in support of his summary judgment

motion. For example, he argues that Cruz failed to bring forth

evidence from which a reasonable juror could conclude a) that the

decision to remove her from her employment was somehow related to

her political affiliation; b) that she had a cognizable property

interest in continued employment; and c) that Rivera was liable

under the respondeat superior doctrine. Although these claims may

be meritorious, we clearly have no jurisdiction to address them.

Orders of the district court denying pretrial motions for summary

judgment typically are not appealable at the time they are entered.
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Díaz v. Martínez, 112 F.3d 1, 3 (1st Cir. 1997). Such orders are

not "final decisions" in the sense required by 28 U.S.C. § 1291

(conferring appellate jurisdiction over "final decisions" of the

district courts). See 28 U.S.C. § 1291 (2000); Vélez-Díaz v.

Vega-Irizarry, 421 F.3d 71, 77 (1st Cir. 2005).

One of Rivera's arguments, however, gives us reason to

pause -- namely, the argument that the court erred in not finding

that he was entitled to qualified immunity for his actions. This

presents a more difficult jurisdictional question, as the denial of

a claim of qualified immunity at the summary judgment stage is, in

limited instances, subject to an interlocutory appeal. As we wrote

in Díaz, "where . . . a defendant seeks the shelter of qualified

immunity by means of a pretrial motion and the . . . court denies

the requested relief, a different result sometimes obtains." Díaz,

112 F.3d at 3. More specifically, if the pretrial rejection of the

qualified immunity defense is based on a "purely legal" ground,

then the denial may be challenged through an interlocutory appeal.

Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003). What

cannot be appealed is a district court's rejection of the defense

based on the court's determination that "the pretrial record sets

forth a 'genuine' issue of fact for trial." Johnson v. Jones, 515

U.S. 304, 319-20 (1995); see also Vélez-Díaz, 421 F.3d at 77;
 We should point out that there does exist an exception to the 5

Johnson rule. A denial of qualified immunity because of factual

issues is still reviewable if qualified immunity is warranted on

the plaintiff's version of the facts together with facts that are

not disputed, Behrens v. Pelletier, 516 U.S. 299, 312-13 (1996);

Rodríguez-Rodríguez, 391 F.3d at 40. No such situation, however,

is presented here.

 Even if the district court was mistaken in its determination 6

that a disputed factual issue remained, we still would not have

jurisdiction to hear this appeal. See Rodríguez-Rodríguez, 391

F.3d at 40 (noting that "Johnson makes clear that this class of

legal rulings is not immediately appealable even if the district

court is mistaken in thinking that there was a genuine issue").

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Rodríguez-Rodríguez v. Ortiz-Vélez, 391 F.3d 36, 39-40 (1st Cir.

2004).5

To determine, then, whether or not we have jurisdiction

to consider Rivera's qualified immunity claim, we must examine the

grounds upon which the district court, in its order denying summary

judgment, rejected Rivera's qualified immunity argument. The

district court -- after laying out the "trifurcated inquiry" for

determining whether qualified immunity is available to a particular

defendant under § 1983, see Hatch v. Dep't for Children, 274 F.3d

12, 20 (1st Cir. 2001), and running through the first two prongs of

the analysis -- stated explicitly, with regard to the third prong,

that "[b]ecause there remains a disputed factual issue as to

whether Defendants' actions were motivated by Plaintiff's political

affiliation, Defendants' motion for summary judgment on this ground

is denied."6
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Clearly, then, the district court declined to enter

summary judgment on Rivera's qualified immunity claim based on its

determination that "the pretrial record set[] forth a 'genuine'

issue of fact for trial." Johnson, 515 U.S. at 320. Accordingly,

pursuant to Johnson and its progeny, the district court's decision

regarding Rivera's qualified immunity claim may not be challenged

through an interlocutory appeal. Thus, as with Rivera's other

appellate claims, we do not have jurisdiction.

III. Conclusion

For the reasons stated above, we dismiss the appeal for

lack of appellate jurisdiction.

Dismissed.