United States Court of Appeals

For the First Circuit

No. 04-1494

MANUEL CARDONA-MARTÍNEZ; CARMEN MÁRQUEZ-PARRILLA

Plaintiffs, Appellants,

v.

ÁNGEL D. RODRÍGUEZ-QUIÑONES; MIGDALIA MOLINA; ADA GUEVARA;

LAUDELINO RIVERA; OLGA RODRÍGUEZ-VIERA; RAMÓN AYALA-SANTIAGO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lipez, Circuit Judge.

Fredeswin Perez-Caballero, with whom Hernandez Sanchez Law

Firm and Jesus Hernandez-Sanchez were on brief, for appellants. 

Javier I. Arbona Azizi, with whom Quiñones, Sánchez &

Guzmán, P.S.C. was on brief, for appellees.

April 6, 2006
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STAHL, Senior Circuit Judge. Manuel Cardona-Martínez and

Carmen Márquez Parrilla bring this appeal challenging the judgment

entered in favor of the defendants below in this political

discrimination case. Cardona and Márquez are members of the New

Progressive Party (NPP), which was until November 2000 the ruling

party in the Commonwealth of Puerto Rico. In 2000, the NPP

administration was ousted when the Popular Democratic Party (PDP)

won the November gubernatorial election. With the resultant change

in the Puerto Rican administration in January 2001 came a rotation

of the membership of the managerial echelon at various executive

agencies. Like a spate of others decided in the course of the past

few years, this case arises out of that shake-up. See, e.g.,

Rodríguez-Marín v. Rivera-Gonzalez, 438 F.3d 72 (1st Cir. 2006);

Borges Colón v. Román-Abreu, 438 F.3d 1 (1st Cir. 2006);

Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145 (1st Cir. 2006);

Rosario-Urdaz v. Velazco, 433 F.3d 174 (1st Cir. 2006). 

Cardona and Márquez allege that they were demoted and

suffered other professional indignities after the change of regime,

and brought these political discrimination claims under the First

and Fourteenth Amendments. The district court rendered judgment as

a matter of law after the close of the plaintiffs' case-in-chief,

finding, inter alia, that the plaintiffs could not prove unlawful

political discrimination because the positions from which they were

removed were political positions. We affirm.
This appeal was brought after the district court granted 1

judgment as a matter of law in favor of the defendants, and so we

recite the facts as presented by the plaintiffs, drawing any

inferences in their favor.

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I.

Appellants here were, both before and after the 2000

elections, employees of the Regulations and Permits Administration,

known by its Spanish acronym, ARPE. The Puerto Rican career 1

service recognizes two relevant categories of employees at state

agencies like the ARPE: those who hold positions of trust and

confidence, who are generally in the style of policy-makers and

advisers and who are political appointees, see 3 P.R. Laws Ann. §

1350 (2000); and those who hold career positions, see id. § 1352,

who make up the bulk of the remainder of the public sector. In

hiring the former, a potential employee's political affiliation is

typically a vital consideration, while as to the latter, Puerto

Rican law dictates that political affiliation is neither a relevant

nor a permissible consideration. See id. § 1333.

Cardona and Márquez have each held both trust and career

positions, but for a significant period prior to the election, each

held a trust position. Puerto Rican law gives departing trust

employees who came out of the career service the right to reclaim

a career position equivalent to the career position they last held.

See id. § 1350(8)(a); see also Rosario-Urdaz, 433 F.3d at 176. Our

cases have noted other instances in which trust employees have made
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such a move prior to an election in which an opposing party may

win, and made it at the latest date possible before the election.

See, e.g., Rodriguez-Marin, 438 F.3d at 75; Velez-Rivera, 437 F.3d

at 149. Puerto Rico has imposed a moratorium on such shifts during

the two months prior to and the two months after an election, see

3 P.R. Laws Ann. § 1337, which means that these shifts into career

positions tend to take place in August or early September before a

November election. Accordingly, in August 2000, as the elections

approached, both Cardona and Márquez moved from their trust

positions into career positions.

Each briefly took a significant pay cut and reduction in

assigned duties. Crucial to this case, however, both were quickly

promoted to positions designated as career posts but carrying

salaries commensurate with their old trust-position salaries.

In November 2000, the PDP won the Commonwealth-wide

gubernatorial election, and in January 2001, the new administration

took over. Roughly one year later, toward the end of January 2002,

appellants both received letters signed by the new (PDP-affiliated)

administrator of their division of the ARPE removing them to new

positions. Each was given a brief informal hearing on the question

of his or her reassignment. Cardona was moved from his recently

acquired position as a class-II Administrative Facilitator, with a

$4,000 monthly salary, to a statistician's job with a salary closer

to $1,700. Márquez received a similar letter, informing her that
Márquez also stated a First Amendment claim arising out of an 2

incident in which she was reprimanded after speaking critically

about the new administration on the radio, but on appeal does not

press any issues related to that claim.

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she would lose her position as Manager of Services and Process,

with its monthly salary of $4,300, and would resume work as an

Internal Service Representative at a monthly rate of $2,500.

The appellants brought suit in the United States District

Court for the District of Puerto Rico under 42 U.S.C. § 1983 and

the First and Fourteenth Amendments, alleging that their demotions

and reductions of pay and perquisites were unconstitutional because

motivated by political animosity. Named as defendants are various 2

members of the new cadre of trust employees appointed to run the

ARPE. The case went to trial on January 29, 2004, and plaintiffs

concluded presentation of their case-in-chief on February 12, 2004.

The defendants subsequently moved for judgment as a matter of law

under Rule 50 of the Federal Rules of Civil Procedure. The

district court granted the defendants' motion.

The district court opinion granted judgment on the basis

of three interrelated conclusions. The first was that Cardona and

Márquez held their most recent positions illegitimately; the second

was that the positions they held, while designated as "career"

positions for purposes of the Puerto Rican career service, were

nevertheless in fact the type of politically sensitive positions

that the First Amendment permits to be filled on the basis of
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political affiliation; and the third was that the plaintiffs had

not put forward evidence of discriminatory intent on the part of

the defendants. The court ruled that the state's interest in

filling the vacated positions with supporters of the incoming

party's policies, taken together with the weakness of the evidence

presented at trial of any politically discriminatory motive on the

part of the defendants, meant that "a reasonable jury could not

conclude that Plaintiffs have met their burden establishing a cause

of action for political discrimination in violation of the First

Amendment of the United States Constitution pursuant to 42 U.S.C.

Section 1983." Cardona and Márquez timely appealed.

II.

Federal Rule of Civil Procedure 50(a) permits a party to

move for judgment as a matter of law before the case has been

submitted to the jury. In deciding a Rule 50 motion, a district

court "must examine the evidence, and inferences to be drawn

therefrom, in the light most favorable to the non-movant." Mangla

v. Brown Univ., 135 F.3d 80, 82 (1st Cir. 1998) (citing

Rolón-Alvarado v. Municipality of San Juan, 1 F.3d 74, 76 (1st Cir.

1993)). Judgment as a matter of law may be granted when a party

has been fully heard on an issue and has presented "no legally

sufficient evidentiary basis for a reasonable jury to find for that

party on that issue . . . ." Fed. R. Civ. P. 50(a)(1); see also

Mangla, 135 F.3d at 82 (judgment as a matter of law may be granted
There may be a passing gesture at the point in the brief, but 3

if so, it is insufficient to alert us to any error in the district

judge's determination. "[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Appellants have not indicated, for example, what

duties they had in the career positions from which they were

ejected, and without that information, we are in no position to

review the determination of the district judge.

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"only if the evidence, viewed from this perspective, is such that

reasonable minds could not differ as to the outcome" (quoting

Rolón-Alvarado, 1 F.3d at 77)). We review the disposition of the

motion de novo, applying the same standard. Mangla, 135 F.3d at

82.

On appeal, plaintiffs have challenged two of the district

court's three determinations. The first challenge is to the

district court's conclusion that the promotion of Cardona and

Márquez to higher level positions in the career service within days

of their transfers from trust to career positions was illegitimate.

The second challenge is to the district court's conclusion that no

evidence of political discrimination had been adduced. Left

unchallenged, however, is the district court's determination that

the positions to which Cardona and Márquez were promoted were

(despite being designated "career positions" by the Puerto Rican

career service) policymaking positions. The import of that 3

conclusion appears to have eluded appellants' counsel, and the

failure to challenge the determination is fatal to appellants'

claims. While the general rule is that the dismissal of a public
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employee on the basis of the employee's political affiliation

"infringes First Amendment freedoms of belief and association,"

Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 239 (1st Cir.

1986) (en banc), a vital exception to the rule is that politically

motivated dismissals of public employees holding certain

politically sensitive positions are both permissible and necessary

in a system of representative democracy. See id. (quoting Elrod v.

Burns, 427 U.S. 347, 367 (1976)). The question a court must ask in

deciding whether a post may be filled on the basis of political

affiliation is whether such affiliation "is an appropriate

requirement for the effective performance of the public office

involved." Id. at 240 (quoting Branti v. Finkel, 445 U.S. 507, 518

(1980)). Although the designation of a position as a trust or

career post under the Puerto Rican career service regime is a

factor relevant to the determination whether the federal

constitution permits political affiliation to be taken into account

in making hiring and firing decisions with respect to the position,

it is not determinative. Id. at 246.

Here, the district court concluded that the stipulated

and uncontested facts indicated that the job positions to which the

appellants were promoted just before the election were political

positions, and that denying the incoming administration the power

to fill the positions with members of it own party would frustrate

the efforts of the victors of the recent election to carry out the
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policy initiatives that it was their duty and mandate to implement.

We need take no view as to whether this was in fact a correct

conclusion on the evidence presented at trial. By failing to make

the argument that the district court erred on this point,

appellants have waived it and have effectively conceded the point.

See King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997); see

also Pomerleau v. W. Springfield Pub. Sch., 362 F.3d 143, 147 n.3

(1st Cir. 2004). The conceded point is dispositive of this appeal:

the appellants are bound by the district court's unchallenged

conclusion that the First Amendment did not bar the defendants from

removing them from their positions on the basis of their political

affiliation, and so the district court's grant of judgment as a

matter of law must stand.

III.

For the foregoing reasons, the entry of judgment by the

district court is affirmed.