United States Court of Appeals

For the First Circuit

No. 05-2215

KEVIN VALDIZÁN,

Plaintiff, Appellee,

v.

VICTOR RIVERA-HERNANDEZ, ETC., 

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya and Lynch, Circuit Judges.

Celina Romany, with whom Celina Romany Law Offices was on

brief, for appellant.

Francisco R. Gonzalez, with whom Bufete F. R. Gonzalez was on

brief, for appellee.

April 17, 2006
Because the first component of the analysis is dispositive 1

here, see text infra, we need not elaborate upon the other two

steps in the pavane.

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SELYA, Circuit Judge. "Qualified immunity protects

public officials from civil liability insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Surprenant v.

Rivas, 424 F.3d 5, 14 (1st Cir. 2005) (citations and internal

quotation marks omitted). A public official's assertion of a

qualified immunity defense engenders a tripartite analysis. See

Saucier v. Katz, 533 U.S. 194, 207-08 (2001); Limone v. Condon, 372

F.3d 39, 44 (1st Cir. 2004). The first component of that analysis

involves ascertaining whether the plaintiff's averments, if true,

establish a violation of a right secured by federal constitutional

or statutory law. See Limone, 372 F.3d at 44. The case at hand

turns on an application of this facet of the qualified immunity

doctrine.1

The plaintiff here, Kevin Valdizán, is a quondam employee

of the Puerto Rico Department of Labor. He claims that he was

cashiered in 2001 because of his political leanings. After a

modicum of pretrial discovery, the Secretary of the Puerto Rico

Department of Labor moved for summary judgment on the ground of

qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19

(1982). After the district court denied the motion, this

interlocutory appeal ensued.
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Generally, our appellate jurisdiction is limited to the

review of final orders and judgments. See 28 U.S.C. § 1291.

Interlocutory orders, such as those denying summary judgment, are

not normally appealable as of right when entered. See, e.g.,

Camilo-Robles v. Zapata, 175 F.3d 41, 44-45 (1st Cir. 1999). A

qualified immunity defense, however, raises special considerations.

Thus, when a public official qua defendant seeks the prophylaxis of

that doctrine and unsuccessfully pursues summary judgment, he

sometimes may appeal without awaiting the entry of final judgment.

See id. at 45. In broad-brush terms, the denial of such a motion

is immediately appealable if the central issue is a purely legal

one. See Johnson v. Jones, 515 U.S. 304, 318 (1995). It is not

immediately appealable if the central issue is "whether or not the

pretrial record sets forth a 'genuine' issue of fact for trial."

Id. at 320. 

In many situations in which a qualified immunity defense

has been raised, a district court's denial of summary judgment will

not fit neatly into one category or the other. This is so, in

part, because although the "[d]enial of summary judgment often

includes a determination that there are controverted issues of

material fact," that circumstance alone "does not mean that every

such denial of summary judgment is nonappealable." Behrens v.

Pelletier, 516 U.S. 299, 312-13 (1996) (emphasis in original). For

example, the court of appeals retains jurisdiction to entertain an
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immediate appeal in "situations in which the district court assumes

a set of facts and decides, as a matter of law, that those facts

will not support a qualified immunity defense." Camilo-Robles v.

Hoyos, 151 F.3d 1, 8 (1st Cir. 1998). In that event, "the court of

appeals can simply take, as given, the facts that the district

court assumed when it denied summary judgment for [a] (purely

legal) reason." Johnson, 515 U.S. at 319.

This case represents such a situation. The plaintiff

charges, in substance, that the Secretary transgressed his First

Amendment rights by firing him from his non-tenured position —

"Executive II" — because of their differing political allegiances.

The district court discerned a genuine issue of material fact as to

whether or not the record contained significantly probative

evidence linking political animus to the plaintiff's discharge. We

are not at liberty to reexamine that conclusion on an interlocutory

appeal. See Camilo-Robles, 151 F.3d at 8. 

Still, that determination does not entirely close the

door to appellate jurisdiction. In reaching its decision, the

district court necessarily assumed that a patronage dismissal, if

proven, would be unconstitutional. As long as we do not question

the district court's determination that a reasonable jury could

find that political animus comprised the impetus behind the

plaintiff's ouster, we remain free to examine, on an interlocutory

appeal, whether that fact makes any cognizable legal difference.
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This means that, here, we remain free to examine the logically

antecedent (and completely separate) question of whether the

plaintiff occupied a position in the government agency for which

political affiliation is an appropriate qualification. See, e.g.,

Galloza v. Foy, 389 F.3d 26, 29-30 (1st Cir. 2004). We turn to

that discrete issue.

This inquiry starts — and in this case ends — with an

inspection of the functions of the position in question, aimed at

determining whether it is a policymaking position. See Branti v.

Finkel, 445 U.S. 507, 518 (1980) (framing the relevant inquiry as

"whether the hiring authority can demonstrate that party

affiliation is an appropriate requirement for the effective

performance of the public office involved"); Elrod v. Burns, 427

U.S. 347, 367 (1976) (plurality op.) (holding that, under the First

Amendment, "patronage dismissals" must be restricted to

"policymaking positions"); see also Rutan v. Repub. Party of Ill.,

497 U.S. 62, 74 (1990) (reaffirming Elrod/Branti rule and stating

that "government's interest in securing employees who will loyally

implement its policies can be adequately served by choosing or

dismissing certain high-level employees on the basis of their

political views"). On this issue, the material facts are

undisputed: the plaintiff served in a "trust" position labeled

"Executive II," and we may rely upon the official job description

for the position to determine whether it is one for which political
The official job description in the record is in Spanish. 2

However, the Secretary's statement of material facts not in

dispute, see D.P.R. R. 56 (formerly D.P.R. R. 311.12), contains

translations of pertinent excerpts. The plaintiff has not

challenged either the accuracy or the completeness of those

translations. Accordingly, we accept them unconditionally. 

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loyalty is an appropriate qualification. See, e.g., Mendez-Palou

v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir. 1987)

("Whenever possible, we will rely upon [the written job

description] because it contains precisely the information we need

concerning the position's inherent powers and responsibilities . .

. ."). 

The applicable job description prominently includes 2

"[p]rofessional, executive and administrative financial

responsibilities" of a high order. In addition, the position

specifically requires the holder's participation in "the

formulation and implementation of public and finance policy" at the

project, commonwealth, and federal levels. And, finally, the job

description authorizes the holder to exercise "ample liberty in the

use of his judgment" in the performance of his administrative

functions. These stipulations leave no doubt but that, under our

precedents, the position is policymaking in nature. See, e.g.,

Galloza, 389 F.3d at 31-32; Cordero v. De Jesus-Mendez, 867 F.2d 1,

14 (1st Cir. 1989); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d

236, 242-46 (1st Cir. 1986) (en banc). As such, political

affiliation is, as a matter of law, an appropriate criterion for
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continued employment and the position, for federal constitutional

purposes, is fairly subject to the changing winds of patronage. 

The plaintiff's only real response to this line of

reasoning is that the actual duties he performed as "Executive II"

were more technical than the official job description suggests,

and, therefore, that his position was not truly policymaking in

nature. Our case law makes it abundantly clear, however, that a

court must "focus on the powers inherent in a given office, as

opposed to the functions performed by a particular occupant of that

office." Jimenez Fuentes, 807 F.2d at 242; accord Cordero, 867

F.2d at 9; Mendez-Palou, 813 F.2d at 1258. The plaintiff offers no

reason why that general rule should not govern here. Accordingly,

the job description trumps the plaintiff's self-serving account of

his actual duties. 

We need go no further. The only claim presently before

us is the plaintiff's First Amendment claim for money damages,

premised on political discrimination, against the head of the

agency that employed him. Because the plaintiff occupied a highlevel policymaking position, there is no First Amendment violation

even if raw politics prompted his release. The Secretary was,

therefore, entitled to qualified immunity. See Duriex-Gauther v.

Lopez-Nieves, 274 F.3d 4, 9-11 (1st Cir. 2001). Hence, the

decision of the district court denying the Secretary's motion for

summary judgment on the ground of qualified immunity is reversed,
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and the case is remanded for further proceedings consistent with

this opinion.

Reversed and remanded.