United States Court of Appeals

For the First Circuit

No. 07-1976

SAMUEL LÓPEZ-QUIÑONES; IRIS GRISEL NIEVES-HERNÁNDEZ; 

CONJUGAL PARTNERSHIP LÓPEZ-NIEVES,

Plaintiffs, Appellees,

v.

PUERTO RICO NATIONAL GUARD; COMMONWEALTH OF PUERTO RICO;

WILLIAM VÁZQUEZ-IRIZARRY, In his official Capacity as Secretary of

Justice of the Commonwealth of Puerto Rico; MILAGROS MORENO-RAMOS;

CONJUGAL PARTNERSHIP COLÓN-MORENO; JOE DOE; CONJUGAL PARTNERSHIP

DOE-BURGOS; JOHN DOE; CONJUGAL PARTNERSHIP DOE-APONTE; ARTURO

DÁVILA; CONJUGAL PARTNERSHIP DÁVILA-MARTÍNEZ; SARA DOE; CONJUGAL

PARTNERSHIP REYES-DOE; ABC INSURANCE COMPANY; CONJUGAL PARTNERSHIP

MÁRQUEZ-DOE; CONJUGAL PARTNERSHIP SANTIAGO-DOE; MRS. SANTIAGO,

Defendants,

FRANCISCO A. MÁRQUEZ-HADDOCK, JUAN E. COLÓN-GARCÍA; JOSEFA BURGOSREYES; EVA APONTE-MARICHAL; MARIMIR MARTÍNEZ-MORALES; NELSON REYESAVILÉS; SAMUEL SANTIAGO-RAMÍREZ,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella, Circuit Judge,

and Selya, Senior Circuit Judge.
Jorge Martínez-Luciano with whom William O'Connor was on brief

for defendants, appellants.

Efraín Maceira-Ortiz for appellees.

May 21, 2008
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BOUDIN, Chief Judge. Samuel Lopez-Quinones--a former

official of the Puerto Rico National Guard--claims he was terminated

from that position on account of his political affiliation. He sued

the Commonwealth of Puerto Rico, the Puerto Rico National Guard, and

various officials, seeking relief primarily under 42 U.S.C. § 1983

(2000). This interlocutory appeal presents only the question whether

the individual defendants are entitled to qualified immunity from

Lopez' damage claims.

Lopez was hired as director of the general services

section of the Puerto Rico National Guard in 1997. In the 2000

elections, the Popular Democratic Party ("PDP") defeated the New

Progressive Party ("NPP"). Lopez--a known supporter of the NPP--

claims that after the election, he was gradually stripped of his

professional duties. In July 2004, disciplinary proceedings were

instituted against him within the National Guard.

Lopez then filed suit in federal district court in Puerto

Rico, seeking injunctive and monetary relief. In July 2005, while

his suit was pending, Lopez was terminated. He sought preliminary

injunctive relief ordering his reinstatement and amended his

complaint to reflect the fact of his termination. In October 2006,

the district court denied Lopez' request for preliminary injunctive

relief.

Shortly thereafter, the individual defendants moved for a

ruling on their previously asserted defense of qualified immunity.
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They urged that Lopez' position was not protected from political

patronage firings under the Elrod/Branti line of cases, see Elrod v.

Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980),

and that in any event, defendants were entitled to qualified immunity

because any such protection was not clearly established at the time

of Lopez' termination.

The district court denied the motion, and defendants filed

this interlocutory appeal. Although the district court's order is

not a final disposition of the case, we have jurisdiction to the

extent defendants seek review of the district court's denial of their

qualified immunity defense, Torres v. Puerto Rico, 485 F.3d 5, 8-9

(1st Cir. 2007), but only so far as it rests on a legal ruling rather

than a factual dispute. Riverdale Mills Corp. v. Pimpare, 392 F.3d

55, 60 (1st Cir. 2004). As to the legal questions, our review is de

novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004).

The qualified immunity defense depends on whether the

nature of Lopez' position was such that defendants were entitled to

consider his political affiliation as a job qualification and, even

if they were not, whether a reasonable officer at the time would have

understood patronage dismissal to be barred. See Limone v. Condon,

372 F.3d 39, 44 (1st Cir. 2004). Analytically, the second question

may often be answered without resolving the first, but in accordance

with Saucier's preferred approach, we generally--although not always-
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-answer the questions in sequence. Saucier v. Katz, 533 U.S. 194,

201 (2001).

In Elrod, the Supreme Court announced a new rule rendering

patronage firings a violation of the First Amendment save where

political affiliation is an appropriate qualification for the

particular position. Elrod, 427 U.S. at 367-68; Branti, 445 U.S. at

518. Yet, as we said in Flynn v. City of Boston, 140 F.3d 42, 44

(1st Cir.), cert. denied, 525 U.S. 961 (1998), doctrine in this area

remains

largely a porridge of general statements and

variables: positions are less likely to be

protected to the extent that they are

"higher," more "political," more

"confidential," and so on; duties prevail over

titles; everything depends on circumstances.

Our decisions have asked whether a position's functions

are those of "a policymaker, a privy to confidential information, a

communicator, or some other office holder whose function is such that

party affiliation is an equally appropriate requirement." Jimenez

Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir. 1986) (en

banc), cert. denied, 481 U.S. 1014 (1987); see also Flynn, 140 F.3d

at 45. "Actual functions of the job, not titles, control, and an

official description of job functions is a presumptively reliable

basis for determining those functions." Olmeda v. Ortiz-Quinonez,

434 F.3d 62, 66 (1st Cir. 2006) (citation omitted).

We also consider the position's "relative pay" and whether

it entails "technical competence, power to control others, authority
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to speak in the name of policymakers, public perception, contact with

elected officials and responsiveness to partisan politics and

political leaders." Mendez-Palou v. Rohena-Betancourt, 813 F.2d

1255, 1259 (1st Cir. 1987). Under the case law, the classification

of a position as "career" (rather than "trust") under Puerto Rico law

is relevant, although not dispositive. Roldan-Plumey v. CerezoSuarez, 115 F.3d 58, 64-65 (1st Cir. 1997). 

As director of the general services section, Lopez headed

the unit of the Guard responsible for inventory (not including

military equipment), utilities, property maintenance and related

functions. He supervised approximately thirty other employees. Both

are factors tending to indicate that one's position involves

discretionary judgments, which in turn often entail policymaking.

See Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 132 (1st Cir.

2005). He earned just over $30,000 per year and his job

classification form said that review of his work was "superficial"

(as opposed to "thorough").

On the other hand, Lopez' position was classified as a

"career" position under Puerto Rico law and a closer look at his

detailed job description suggests that he had modest, if any,

involvement in policymaking. True, the first listed responsibility

is spacious ("Plans, coordinates and supervises the activities of the

general services section relating to maintenance, property,

purchasing, transportation, reproduction, inventory, receiving
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equipment, leasing of establishments and general services"), but

almost all of the specifics are routine and fairly pedestrian. They

include (merely as examples) responsibility for:

hiring air-conditioning and radio

maintenance services, radios, fumigation,

cleaning and others, whether with federal or

state funds;

matters relating to the telephone

service (switchboard) and state transportation

(regulations, use, etc.);

seeing that the agency is provided with

[utility] service of water, electricity and

telephone;

supervis[ing] the work of employees

working in the state warehouse, their

purchasing, inventories, etc.;

oversee[ing] proper filling in of

purchasing logs and controls and control of

existing property;

revis[ing] and coordinat[ing] matters

relating to the maintenance and cleaning of

the agency; and

[supervising] employee training in the

computer and programming system.

In addition, a number of the functions involve reporting

and other paperwork matters; most look mechanical (e.g., "responsible

for seeing that all contracts are filed with the P.R. Comptroller's

Office pursuant to provisions"), although a few could--but not

necessarily would--involve policy judgments depending on the precise

role Lopez actually played in the process (e.g., "supervises bids

carried out in the section's purchasing area").
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So far as appears, Lopez' job did not involve advising any

senior officials on policy matters. He did not operate as a

spokesperson or otherwise liaise with the public or other government

agencies, except in ways largely ministerial. His job does not

appear to have entailed discretionary judgments involving the

implementation of policy, broadly understood. As to bid supervision,

the district court found that Puerto Rico law largely divested Lopez

of discretion in handling bids of significant size.

Lopez did supervise approximately thirty other employees,

but they were mostly janitors and other lower-level employees. It is

hard to see how Lopez' position implicates significant policy issues,

let alone "partisan political interests . . . [or] concerns,"

Branti, 445 U.S. at 519, nor does he appear to be one of those midor upper-level officials or employees who are "significantly

connected to policy-making." Flynn, 140 F.3d at 45.

Although Lopez reported directly to a political appointee,

defendants have failed to identify policy decisions in which Lopez

was directly involved or over which he had influence. Their main

argument is that the Puerto Rico National Guard is involved in

operations--such as law enforcement and natural disaster relief--that

involve policymaking and implicate partisan concerns; that as

director of general services Lopez was involved in procuring and

maintaining the Guard's inventory and property; and that because a

proper supply chain is critical to any successful operation, Lopez
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was well positioned to frustrate any programs or operations with

which he disagreed.

This argument proves too much. Any malfunctioning cog can

jam the gears. An ability to undermine operations through

incompetence or malfeasance does not mean the actor engaged in

policymaking or was a confidante or spokesman for policymakers.

Hadfield v. McDonough, 407 F.3d 11, 18 n.4 (1st Cir.), cert. denied,

546 U.S. 961 (2005). On "the spectrum between policymaker and

clerk," Mendez-Palou, 813 F.2d at 1259, Lopez was closer to the

latter and is, at least on the present record, protected under Elrod.

Whether his termination was in fact politically motivated is a quite

different question.

Still remaining is the question whether his status was

clearly established at the time of his termination. Of course, the

abstract right of a non-policy-related employee to be free from

politically motivated termination dates from Elrod and Branti; but

this is not enough to defeat qualified immunity. The purpose of

qualified immunity is to protect reasonable, if mistaken, decision

making by government officials, Jordan v. Carter, 428 F.3d 67, 71

(1st Cir. 2005), and it does not matter whether the mistake is

related to broad principle or specific application.

The crucial question here is whether a reasonable official

acting at the time of Lopez' termination should have known on what

side of the Elrod/Branti line Lopez' own position fell. Mendez-Palou,
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813 F.2d at 1259. Largely for prudential reasons, the test is not

subjective but asks what a reasonable official would have thought.

Pagan v. Calderon, 448 F.3d 16, 31 (1st Cir. 2006). On the present

facts, this is a close call but the issue is treated as one of law,

Ruiz-Casillas, 415 F.3d at 131; and, in disagreement with the able

district judge, we believe that as the law stood when the decision

was made a reasonable official could (albeit mistakenly) have deemed

Lopez outside Elrod/Branti's protection.

As already explained, a few features of Lopez' position in

combination might have led reasonable superiors of Lopez involved in

the termination decision to believe he was subject to patronage

dismissal: for example, that he headed the unit in question, that

some of his duties were broadly phrased (even if seemingly less

impressive in practice), that he was fairly well paid and his

position lightly supervised, that he reported directly to a political

appointee and that he supervised thirty other employees.

Defendants also point to two prior First Circuit opinions

in which we held that the Personnel and General Services Officer in

the Ombudsman's Office and the Regional Director of the Puerto Rico

General Services Administration were subject to political dismissal.

See Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4 (1st Cir. 2001);

Roman Melendez v. Inclan, 826 F.2d 130 (1st Cir. 1987). Both cases

are distinguishable because the jobs were classified as "trust"

positions, and involved supervision of large numbers of employees,
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discretionary provision of government services, and/or representation

of the agency before the public and other agencies.

But, weighing in defendants' favor, the job titles are

similar, and in Roman Melendez we noted that "in every case

concerning regional directors of government agencies in Puerto Rico,

we have concluded, at least for purposes of qualified immunity, that

a regional director was, in fact, a policymaker." 826 F.2d at 134.

Those reading our past decisions like Duriex-Gauthier could

reasonably have believed that in general, middle managers with

impressive sounding titles and duties were generally outside the

protected category.

The district court's own contrary decision rests

significantly on a possible ambiguity in our own case law, which we

now repair. Some of our precedents may suggest that even if an

official has significant policymaking responsibility, he is still

protected unless it is also established that the policy judgments are

those for which "partisan" political motivations or judgments are

appropriate, e.g., Jimenez Fuentes, 807 F.2d at 241-42; by contrast,

other language from our case law indicates that involvement in policy

or matters implicating political disagreement is sufficient. E.g.,

Flynn, 140 F.3d at 46; see also Tomczak v. City of Chicago, 765 F.2d

633, 641 (7th Cir. 1985).

It is conceivable that there are rare cases where the

distinction might matter--say, a high official whose duties were
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nonetheless entirely technical. Jimenez Fuentes, 807 F.2d at 240.

But for the most part policymaking is in the nature of things the

basis for preserving the right of the democratic political process to

operate; civil service protections can be afforded by statute but the

Constitution does not require them. The reference to "partisan"

politics comes from Branti but it is far from clear that it comprised

a separate test. 445 U.S. at 519.

And for his part, plaintiff has not cited any analogous

First Circuit cases that would have put defendants on notice of

jeopardy. Given past precedent, we cannot say it was clearly

established that Lopez, a director of a significant unit within the

Puerto Rico National Guard, was insulated from political dismissal.

Accordingly, while Lopez may seek injunctive relief for his

termination, he may not obtain monetary relief from the individual

defendants in their personal capacities.

The order denying qualified immunity is vacated and the

matter remanded for further proceedings consistent with this

decision. The damage claims against the individual defendants in

their personal capacities are barred but the suit may otherwise

proceed. All parties will bear their own costs.

It is so ordered.

--Concurring and Dissenting Opinion Follows--
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TORRUELLA, Circuit Judge (Concurring in part, Dissenting

in part). Since 1976, the United States Supreme Court has held that

the First Amendment forbids the discharge of "public employees solely

for not being supporters of the political party in power, unless

party affiliation is an appropriate requirement for the position

involved." Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990)

(citing Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445

U.S. 507 (1980)). That inquiry -- whether political affiliation is

a valid requirement of the job in question -- is the necessary

starting point for political discharge cases. Limone v. Condon, 372

F.3d 39, 44 (1st Cir. 2004).

This circuit leads the nation as one of the most prolific

generators of political discrimination cases; in this area of

litigation, the District of Puerto Rico has the dubious distinction

of being the most fecund district in the circuit. See MoralesSantiago v. Hernández-Pérez, 488 F.3d 465, 466 (1st Cir. 2007) ("[I]n

Puerto Rico, a change between the Popular Democratic Party (PDP) and

the New Progressive Party (NPP) [gives rise to] overly zealous

political operatives of the prevailing party terminat[ing],

demot[ing], or reduc[ing] the salaries of employees affiliated with

the outgoing opposition party."). As a result of the proliferation

of these cases and their public notoriety, the legal precepts

established by them are widely known in Puerto Rico, particularly by

those in public administration. It is, therefore, inconceivable in
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this day and age that a reasonable public official would by-pass an

inquest into whether a position in a government agency requires

political affiliation before taking the drastic action of firing an

employee based on party affiliation. Considering the state of the

law, one who fails to do so can hardly be classified as a reasonable

public official.

Any reasonable public official conducting such an inquiry

would have concluded that López-Quiñones's position was not one

requiring political affiliation. Indeed, by following the longestablished case law in this circuit, the majority properly reaches

the conclusion that López-Quiñones's non-policy related position was

protected from political patronage dismissal. Slip op. at 9 ("On the

spectrum between policymaker and clerk, López[-Quiñones] was closer

to the latter and is, at least on the present record, protected under

Elrod.") (internal quotation marks and citation omitted).

In reaching this conclusion, the majority begins its

analysis with López-Quiñones's detailed job description. See slip

op. at 5. Based on the job description, the majority finds that: (1)

López-Quiñones was holding a "career" position under Puerto Rico law,

id. at 6; (2) "almost all of the specific[] [tasks were] routine and

fairly pedestrian," id. at 7; (3) his reporting and paperwork duties

"most[ly] look mechanical," id.; (4) he was "not involve[d in]

advising any senior officials in policy matters," id. at 8; (5) he

"did not operate as a spokesperson or otherwise liaise with the
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public or other government agencies, except in ways largely

ministerial," id.; (6) he did not have "discretionary judgment[]

involving the implementation of policy, broadly speaking," id.; and

(7) he supervised "mostly janitors and other low-level employees."

Id. Significantly, citing to both Branti, 445 U.S. at 519, and to

Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998), the

majority states that "[i]t is hard to see how López[-Quiñones's]

position implicates significant policy issues, let alone 'partisan

political interests . . . [or] concerns,' . . . nor does he appear

to be one of those mid- or upper-level officials or employees who are

'significantly connected to policy-making.'" Slip op. at 8. On

these facts, the majority concludes that López-Quiñones's position

was not subject to patronage dismissal. I am in full agreement.

It is in the granting of immunity that I part company with

my learned colleagues. Under our qualified immunity law, after

finding that a constitutional right was violated, we turn to whether

the law was clearly established at the time of the violation and

whether a reasonable public officer would have understood that he was

violating that right. See Sueiro Vázquez v. Torregrosa de la Rosa,

494 F.3d 227, 234 (1st Cir. 2007). I disagree with the majority's

conclusion that "as the law stood . . . a reasonable official could

(albeit mistakenly) have deemed López[-Quiñones] outside

Elrod/Branti's protection." Slip op. 10. As made evident by the

majority's own application of our clearly established law, López-
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Quiñones's position was not subject to patronage dismissal. In

deciding to terminate López-Quiñones from his position, the officials

in this case recklessly ignored the established law of this circuit.

Such behavior should lead to the dispossession of the mantle of

qualified immunity, rather than the extension of this privilege to

them.

The majority is able to conclude that the appellants are

entitled to immunity because it gives undue weight to the fact that

López-Quiñones's "job title [is] similar" to two prior cases

"concerning regional directors of government agencies in Puerto

Rico." Id. at 11 (citing Duriex-Gauthier v. López-Nieves, 274 F.3d

4 (1st Cir. 2001) and Román Meléndez v. Inclán, 826 F.2d 130 (1st

Cir. 1987)). In so doing, the majority violates those very

principles to which it claims adherence only a few pages earlier. As

we have warned, the inquiry into the legitimacy of political

patronage requires an inquiry that goes beneath the mere title of the

position. See, e.g., Olmeda v. Ortiz-Quiñonez, 434 F.3d 62, 66 (1st

Cir. 2006) ("Actual functions of the job, not titles, control, and an

official description of job functions is a presumptively reliable

basis for determining those functions." (internal citations

omitted)); Flynn, 140 F.3d at 44 (noting that "duties prevail over

titles"). Unfortunately, it appears that the majority's invocation

of this principle was mere lip service; in its grant of immunity, the
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majority inexplicably applies an entirely different and contradictory

standard.

Even if the job titles in Duriex-Gauthier and Román

Meléndez are similar to that of López-Quiñones, the employees' actual

responsibilities are substantially different. The employees in

Duriex-Gauthier and Román Meléndez held "trust positions;" exercised

meaningful supervision of a large number of employees; enjoyed

discretion over the particular government services under their aegis;

and represented their respective agencies before the public and other

government entities. Duriex-Gauthier, 274 F.3d at 7-8, 10; Román

Meléndez, 826 F.2d at 134-35. In contrast, none of those

prerogatives or powers are present here.

Most importantly, unlike the employees in Duriex-Gauthier

and Román Meléndez, López-Quiñones was not involved in making or

recommending any agency policy. There is nothing in the record to

support a finding that López-Quiñones was a policymaker. The

majority opinion describes him as having only "modest, if any,

involvement in policymaking," slip op. at 6, and even the appellants

"failed to identify policy decisions in which López[-Quiñones] was

directly involved or over which he had influence." Id. at 8.

Policymaking is the key function in requiring that the employee be

required to belong to the political party in power. See Elrod, 427

U.S. at 367 (holding that under the First Amendment "patronage

dismissals" must be restricted to "policymaking positions").
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As stated by the majority at the outset of its opinion:

"Our decisions . . . ask[] whether a position's functions are those

of 'a policymaker, a privy to confidential information, a

communicator, or some other office holder whose function is such that

party affiliation is an equally appropriate requirement." Slip op.

at 5 (quoting Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242

(1st Cir. 1986) (en banc)). López-Quiñones's job functions do not

fall into any of those categories. He was essentially a foreman over

a group of janitors and similar employees; membership in a particular

political party was not a requirement of his job. It is truly

difficult to believe that this was not known or easily discoverable

by the appellants after applying our established jurisprudence in

this area. After professing to apply our clear and established

precedent regarding patronage dismissals, the majority makes an

about-face and inexplicably relies on López-Quiñones's job title

rather than on his responsibilities or functions. See id. at 11.

Far from clarifying the law, the majority muddles it and, in the

process, gives a free ride to government officials who are not

entitled to or deserving of such exceptional treatment.

I dissent to the granting of qualified immunity to these

officials.