# U nitedStates C ou rt o f App eal s For th e Firs t C ircuit

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, 2006Because the firs t c omponent of the analysis is dispositive 1 her e , s e e t e x t i n f r a , w e n e e dn o t e l a b o r a t e u p o n t h e o t h e r two steps in the pavane. -2-

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 a s s e r tion of a qualified immunity d e f ense 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

o r s tatutory 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 d iscovery, 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 m o t ion, this interlocutory appeal ensued.-3- Generally, our appellate jurisdiction is limited to the review of final orders and judgments. See 28 U.S.C. § 1 2 91. Interlocutory orders, such as those denying summary judgment, are not normally appealable as of right when entered. See, e.g., Camilo

- R o b l e s v . Z a p a t a , 1 7 5 F . 3 d 4 1 , 4 4

- 4 5 ( 1 s t C i r . 1 9 9 9). A qualified immunity defense, however, raises special considerations. Thus, when a public official qua defendant seeks the prophylaxis of that doctrine and unsuccessfully p u rsues 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 o n e c a t e g o r y or the other. This is so, in part, because although the "[d]enial of summary j u d g ment often includes a dete r m i nation 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-4-

immediate appeal in "situations in which the district court assumes a set of facts and deci d e s , a s 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 summ a r y j udgment 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 transgr e s s ed 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 t he 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 entire ly 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 differ e n c e.-5-

This means that, here, we remain free to examine the logically

an t e c e d e n t ( a n d c o mp l e t e l y s e p a r a t e ) q u e s t i o n o f w h e t h er the plaintiff occupied a position in the governme n t a g ency for which political affiliation is an appropriate qualification. See, e.g., Galloza v. Foy, 389 F.3d 26, 29-30 (1st Cir. 2004). We tu r n to that discrete issue.

This inquiry starts — a n d i n t his 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 "whet her the hiring authority can demonstrate that party affiliation is an appropriate requir e m ent for the effective performan c e o f 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 issu e , the material facts are undispute d : 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 politicalThe official job description in the record is in Spanish. 2 However, the Secretary's statement of material facts not in di s p u t e , s e e D . P . R . R . 5 6 ( f o r m e r l yD . P . R . R . 3 1 1
. 1 2 ) , c o n t a ins trans l a t ions of pertinent excerpts. The plaintiff has not challenged either the accuracy or the completeness of those translations. Accordingly, we accept them unconditionally. -6- 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 jo b d escription prominently includes 2 "[p]rofessional, executive and administrative financial
resp o n s i b ilities" 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 performan c e o f his administrative functions. These stipulations leave no doubt but that, under our precedents, the po s i tion 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-7-

continued employment and the position, for federal constitutional purposes, is fairly subject to the changing winds of patronage.

The plain t i f f'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 h is position was not truly policymaking in
natur e . Our case law makes it abundantly clear, however, that a court must "focus on the powers inherent in a given o f fice, 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 theagency 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,-8-

a n d t h e case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.