USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1701

MAGALY ROLDAN-PLUMEY,

Plaintiff - Appellant,

v.

HIRAM E. CEREZO-SUAREZ,
PERSONALLY AND AS COMMISSIONER FOR
MUNICIPAL AFFAIRS, ET AL.,

Defendants - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Selya and Stahl, Circuit Judges.

______________

_____________________

Carlos A. del Valle-Cruz,

_________________________
Mu oz
_____

with whom Juan Rafael Gonz lez______________________

and Gonz lez Mu oz & Qui onez Tridas

__________________________________

were on

brief for

Solicitor

General,

Carlos Lugo-Fiol,
________________

Solicitor

appellant.
Sylvia
Roger-Stefani,
_______________________
Department

of Justice,

with

Assistant
whom

General and Edda Serrano-Blasini, Deputy Solicitor General,

____________________

were

on brief for appellees.

____________________

June 4, 1997
____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

On

May 4,

1994, Plaintiff-

Appellant

1983

Magaly Rold n-Plumey

suit

against

("Cerezo"),

("Rold n") brought

Defendants-Appellees

Commissioner of Municipal

and Sandra Valent n ("Valent n"),

of the

Cerezo-Su rez

Affairs for

Puerto Rico,

Director of the Legal Division

and official capacities.

that appellees, in violation

dismissed

her

to

beliefs.

summary

Hiram

Office of the Commissioner of Municipal Affairs ("OCMA"),

in their individual

referred

this Section

from

as

The

her

district

judgment on

the

of

Hearing

Officer) because

court granted

ground that

appropriate

requirement

position of

Hearing Examiner

alleged

of Rold n's First Amendment rights,

position

Examining

The suit

for the

of

Examiner

her

appellees'

party

effective

(also

political

motion

affiliation is

performance of

and, consequently, that

for

an

the

appellees

were

entitled to dismiss Rold n

on those grounds.

and Order, March 5, 1996, at 10.

district

court did

See Opinion
___

Having ruled on the merits, the

not address,

inter alia,
__________

whether appellees

were entitled to qualified immunity.

In

inherent

contrast to

duties

of

the

lower

Rold n's

court,

position

do

we find

not

that

the

demonstrate

policymaking attributes sufficient to subject Rold n to discharge

based

on her

political

entry of summary judgment.

aside the

beliefs and,

accordingly, reverse

Moreover, having found cause

the

to set

judgment on the merits, we address appellees' argument

that they are entitled to qualified immunity and find it wanting.

-2-

BACKGROUND
BACKGROUND

On

March

1, 1992,

Rold n

accepted

the position

of

Hearing Examiner with the Office of the Commissioner of Municipal

Affairs.

The OCMA is the main regulatory agency of Puerto Rico's

municipalities and is charged with uncovering, investigating, and

reporting

to

municipalities'

municipal

management.

mayors

P.R.

any

Laws

irregularities

Ann. tit.

21,

in

the

4909

(1995).

The office is further obligated to provide various forms

of "technical

relating

to

and professional assistance to

their organization,

operation."

Id.
___

4902.

the municipalities

administration,

The

Commissioner

functions and

developed

confidential and trust employee plan under which employees in the

OCMA were classified

in accordance with

the Puerto Rico

Service Personnel Act, P.R. Laws Ann. tit. 3,

plan, developed

by Cerezo's predecessor as

Pag n-Colberg, designated the position

a trust position.

designated as

Public

1301 et seq.
_______

The

Commissioner, Ismael

of "examining officer" as

According to this document, the OCMA positions

trust or

confidence positions were

only "[t]hose

positions whose holders intervene or collaborate substantially in

the formulation of public policy, which directly advise or render

direct

services

Commissioner

to

the

Commissioner

of Municipal Affairs."

of

the

Office

Def. Exh. IV

of

the

to Motion to

Summary Judgment.

The

classification,

position of "Examining Officer"

or

job

description,

for

the

sets forth the position's duties

as follows:

-3-

DUTIES OF POSITION

Professional and technical work that requires

great

knowledge

practice

of

research

of the

law and

principles

the ability

procedures

and the
to direct

leading

to

an

adjudicative determination.

1.

Holds

administrative hearings

required

by the Autonomous Municipalities Act and

any other necessary

one[s] to carry out

the duties assigned to the Commissioner.

Regulates

the

procedures

during

the

[performance] of the same.

2.

Takes

oaths

and

declarations,

summons for the appearance

issues

of witnesses

and the filing of reports, documents and

other evidence necessary to solve cases.

3.

Evaluates

evidence

and

comes

to

for

the

conclusions of facts and law.

4.

Carries

out

legal

studies

solution of cases.

5.

Issues reports with his

conclusions and

recommendations to the Commissioner.

6.

Carries

out

other

assigned

related

duties.

Def. Exh. V to Motion for Summary Judgment.

On November

member

of

governor.

of

the

4,

New

In March

Progressive

1993, Rossell

Municipal Affairs.

to head the Legal

1992, Pedro

In April

Rossell

Party

("Rossell "),

("NPP"),

was

elected

appointed Cerezo Commissioner

1993, Cerezo appointed Valent n

Division of the OCMA.

On

May 6, 1994, Rold n

received a dismissal letter effective that same date.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

viewing

review

the

grant

of summary

judgment

de novo,
________

the facts, and drawing all reasonable inferences, in the

-4-

light

most

favorable

to

the

non-movant,

affirming summary judgment only "if

fact exists."

O'Connor v.
________

Steeves, 994 F.2d

_______

DISCUSSION
DISCUSSION

Political Discharge Claim

Political Discharge Claim

Rold n,

and

no genuine issue of material

Cir. 1993).

I.
I.

here

905, 906-07

(1st

We

turn

first to

the grounds

on which

the district

court granted summary judgment to Cerezo and Valent n.

More than

twenty

held that

years ago,

a plurality

governmental employers

of the

Supreme Court

may not discharge an

employee because of

her political affiliation without showing a governmental interest

sufficiently

vital to

outweigh

right to association.

(1976).

effective

the employee's

First Amendment

Elrod v. Burns, 427 U.S. 347, 355-56, 362

_____
_____

The plurality

found that the

implementation of

its

government's interest in

policies can

be achieved

limiting patronage dismissals to policymaking positions."

372.

"by

Id. at
___

Justice Stewart's concurrence gave the Court a majority for

the proposition that

nonpolicymaking, nonconfidential

employees

should not be discharged on the basis of their political beliefs.

Id. at 374-75 (Stewart, J., concurring in the judgment).

___

The Court next attempted to define the contours

prohibition on political

507 (1980).

Instead

of the

discharge in Branti v. Finkel, 445 U.S.

______
______

of applying Elrod's
_____

policymaking inquiry,

the Branti Court relied upon a finding that political affiliation

______

is not

an appropriate requirement for

of the position

of assistant

the effective performance

public defender.

-5-

Id. at
___

518-19.

The

Branti Court
______

again,

governmental body

however,

seeking dismissal:

can demonstrate 'an

imposed

the burden

"[U]nless

overriding interest'

on

the

the government

'of vital

importance'

requiring that a person's private beliefs conform to those of the

hiring

authority,

depriving

him of

his

beliefs

cannot be

continued public

(citations omitted).

the

sole

basis for

Id.
___

at 515-16

employment."

Of fundamental importance

is the idea that

"conditioning continued public employment on an employee's having

obtained support

First

Amendment

from a particular political

because

of

'the

coercion

party violates the

of

belief

that

necessarily flows from the knowledge that one must have a sponsor

in the dominant

party in order to retain one's

Republican Party of Illinois,

_____________________________

497 U.S.

job.'"

Rutan v.
_____

62, 70 (1990)

(quoting

Branti, 445 U.S. at 516).

______

More

Illinois,
________

the

recently,

Court

in

Rutan
_____

extended

doctrine

to

politically

recalls.

Rutan, 497 U.S. at

_____

v.

Republican
Party of
______________________

the reach

motivated

70.

of

the

promotions,

Elrod-Branti
_____ ______

transfers, and

The Court reaffirmed the heavy

burden on government employers to show that the use of "patronage

practices are

interests."

[a]

narrowly

Id. at 74.
___

tailored

further

vital

government

The Court reiterated that

government's

effective

to

employees

interest
can

in
be

securing
met

by

discharging, demoting,

or transferring staff

members

is

whose

government's

work

deficient.

interest in

securing employees

who

will loyally implement

be

adequately

dismissing

served

certain

its policies can

by

choosing

or

high-level employees

on

the basis of their political views.

-6-

Id.
___

Unless

implementation,

position

or

is

is

one

confidential

that

in nature

requires

(a

claim

policy

that

appellees here

do

hereafter),

government

not make

and

to which

employer

must

we need

rely

not

allude

on

traditional

this circuit has

developed a

discharge criteria.

Based on

two-part test

this case law,

for discerning

affiliation is permissible.

when discharge based

on political

First, we inquire into

whether the

discharging agency's functions entail "'decision making on issues

where

there is room for political disagreement on goals or their

implementation.'"

Fuentes
_______

1986)).

O'Connor,
________

994 F.2d

v. Torres Gaztambide,
__________________

If so,

responsibilities

807 F.2d

we

next

determine

of

the

plaintiff's

department or agency, resemble

at 910

(quoting Jim nez

_______

236, 241-42

"whether

the

position,

(1st Cir.

particular

within

those of a policymaker, privy

the

to

confidential information,

holder

whose

equally

a communicator,

function is

appropriate

such

that

requirement

for

or some

party

other office

affiliation is

continued

tenure."

an

Id.
___

(internal quotation marks omitted); see also Jim nez Fuentes, 807
________ _______________

F.2d at

241-42.

In reviewing this

to "relative pay, technical

authority

to

perception,

speak

influence

in

competence, power to control others,

the

on

second prong, we have looked

name

of

programs,

officials, and responsiveness to partisan

leaders."

O'Connor, 994 F.2d at 910.

________

A.
A.

Agency functions
Agency functions

-7-

policymakers,

contact

with

public

elected

politics and political

In

her opposition

to

appellees'

judgment, Rold n conceded that OCMA

require

"'decision making

political disagreement

on

motion for

summary

is an agency whose functions

issues where

on goals or their

there

is room

for

implementation.'"

Id.
___

For the purposes of this appeal, therefore, we consider the first

prong satisfied.

B.
B.

Whether the position involves policymaking

Whether the position involves policymaking

Under

the second

prong, the

responsibilities of the position

question is

whether the

of Hearing Examiner resemble "a

policymaker, a privy to confidential information, a communicator,

or some other

affiliation

is an

Fuentes, 807
_______

court,

office holder

in

equally

F.2d at 242.

making this

whose function is

such that

appropriate requirement."

We have held

Jim nez
_______

time and again

determination, is

to

party

look only

that a

to the

duties inherent to the position and is not to consider the actual

functions

of either past or present officeholders.

also O'Connor, 994 F.2d

____ ________

the

'powers

inherent

functions performed by a

Cordero

at 911 ("[T]he analysis must

in a

given

office,

as

See id.; see

___ ___ ___

focus upon

opposed to

the

particular occupant of that office.'");

v. Jes s-M ndez, 867 F.2d

1, 9 (1st

Cir. 1989); Romero

_______

____________

______

Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir. 1987); De

_________
_________________
__

Abadia
______

v. Izquierdo Mora, 792

______________

We consider the

dispositive,

F.2d 1187, 1192

job description

source

for

to be the

determining

the

(1st Cir. 1986).

best, and

sometimes

position's

inherent

functions.

See Ortiz Pi ero v. Rivera Arroyo, 84 F.3d 7, 13 (1st

___ ____________
_____________

Cir. 1996)

(stating that

"written, signed job

-8-

descriptions may

provide

highly probative

inherent in a particular

evidence

have considered the OP-16

political

discrimination

Betancourt,
__________

813

F.2d

possible, we will

precisely

the

to the

responsibilities

government position, and may even prove

dispositive"); Romero Feliciano, 836

________________

"we

as

rely upon

information

dispositive in .

cases");

1255,

F.2d at 3 (recognizing that

M ndez Palou
_____________

1260 (1st

Cir.

this document

we need

. . Puerto Rico

v.

1987)

because it

concerning

the

Rohena
______

("Whenever

contains

position's

inherent powers . . . .").

The

Hearing

Examiner

job

description

details

five

specific responsibilities and designates a further responsibility

to "carr[y] out other

assigned related duties."

defined responsibilities make clear

Examiner leaves

and

researching

leave

skills

They are not

for

implementation.

Nor

are they "hazily

narrowly circumscribed

opportunity to

not convey

identify and

in

evaluating

facts

and

broad and open-ended, and do not

discretionary

Quevedo v. De Jes s Schuck, 556

_______
________________

The

that the position of Hearing

The narrow duties require application of

professional

law.

room

five well-

little room for free-ranging actions independent

of their limited scope.

technical

The

policymaking

defined."

or

See Alfaro de
___ __________

F.2d 591, 593 (1st

duties permit

the

policy

Cir. 1977).

officeholder the

investigate irregularities,

but do

power or discretion to take any action as a result of

these findings.

Indeed, in their brief, appellees recognize that

"plaintiff's position as described

in her job description seemed

-9-

to involve technical and

professional skills."

Appellees' Brief

at 20.

In addition, the limited nature of the position differs

substantially

from most

of those

positions for

which

we have

previously

found

requirement.

Roque,
_____

For instance,

889 F.2d

positions

to

in

the

regional

act as a liaison

and private

an appropriate

1989), we

of the first

including

director

at

public

Aponte_______

reviewed four

of

political

position listed

supervising

employees,

meetings,

when the director

and

was absent.

under review required the officeholder

between the Department

schools, to

be

appropriateness

respective office

The second position

to

Agosto-de-Feliciano v.
___________________

(1st Cir.

the

responsibilities

overseeing the

to

affiliation

The job description

representing

Id.
___

1209, 1213

determine

affiliation.

twenty-six

political

coordinate a

of Public Education

teaching

program in

project school, and

to direct a

organization.

The third position consisted of twenty-three

Id.
___

regionwide committee on

the

school

responsibilities,

develop

work

requiring the

plans,

evaluate

vocational education, and

The

position

Finally,

twenty-one

also

the

included

personnel.

and

Id. at
___

and

supervisory

for

stated

administration, oversight of

transportation,

curricula

to survey

needs,

training, manage

supervise student organizations.

job description

broadly

officeholder

duties,

component.

fourth position

including

programs relating to school

student

1214-15.

the

services,

These

-10-

Id.
___

and

Id.
___

listed

budget

needs,

evaluation

high-level positions,

of

with

their

numerous,

loosely defined

responsibilities,

allowed the

officeholders considerable power and discretion in the management

of

Puerto

oversight,

Rico's

Department

evaluation,

and

of

revision

supervision of personnel.

Some

in

heads.

place

of

department

responsibilities of

Education.

They

of programs

as

included

well

allowed the officeholder to

The

circumscribed

the position of Hearing

list

as

act

of

Examiner grants the

officeholder no such broadly defined powers.

In O'Connor v.
________

Steeves, we found that

_______

the position of

superintendent,

the

which gave

administration of

required

policymaking,

all

departments of

acting

supervising personnel, all

political

the officeholder

affiliation

as

responsibility for

city government

city

and

representative, and

duties absent here, was one for which

was

an

appropriate

consideration.

O'Connor, 994 F.2d at 911.

________

In the seminal

Fuentes
_______

banc),

v. Torres Gaztambide, 807

_________________

F.2d 236 (1st

Jim nez
_______

Cir. 1986) (en

this court reviewed the claims of plaintiffs who had been

discharged

from their

Puerto Rico Urban

attached

political discrimination case,

to the

Puerto Rico.

positions

as Regional

Development and Housing

Department

Id. at 237-38.
___

of Housing

Directors of

the

Corporation ("CRUV"),

of the

Commonwealth of

Approximately 3,000 of the

3,600

CRUV

The

employees served under the disputed positions.

job

descriptions

consisted

directing, planning, and

of

twenty

duties,

supervising the operational

Id. at 243.
___

including

activities

of the entire region, developing and implementing new programs or

-11-

discerning

spokesperson

ways

for

to

the

improve

existing

Executive and

programs,

Associate

serving

Directors,

as

and

controlling

the

policymaker.

816

region's budget,

Id. at 244;
___

all

duties

of a

high-level

see also Raffucci Alvarado v. Zayas,

________ __________________
_____

F.2d 818, 821-22 (1st Cir. 1987) (finding position of Social

Services Regional Director

sufficiently entailed policymaking to

render political affiliation relevant).

The position

at issue here is

readily distinguishable

from those at issue in Jim nez Fuentes and O'Connor, and

_______________
________

akin to the position

Cordero v.
_______

of Internal Auditor, which we

Jes s-M ndez,

____________

867

F.2d

1 (1st

Cir.

position of Internal Auditor did not require the

engage in

policymaking decisions, but instead

auditor investigate

the financial records of

is more

addressed in

1989).

The

officeholder to

required that the

a municipality and

make

a report to

internal

the Mayor

Id. at
___

As in

Id.
___

Id.; see also De Choudens v. Government Dev.

___ ________ ___________
_______________

Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir. 1986).

___________________

Examiner is charged only

possible

reporting

discretion

in

municipal

Commissioner, in whom

Considering

that they require

functions,

formulate

or

and

authority rests to

these five enumerated duties, we

technical and professional

to

A Hearing

with investigating and holding hearings

irregularities

them to the

take action.

provide

The

Cordero, the position at issue here is that of a

_______

"technocrat."

into

18.

auditor had no authority to correct the mistakes he was

charged to investigate.

mere

and Comptroller.

skills and do

implement

policy.

find

not

See
___

-12-

generally De Choudens, 801 F.2d at 9-10.

_________ ___________

Accordingly,

political

affiliation is not an appropriate requirement for the position.

Moreover,

a review

of the

indicia we

have typically

considered material to this determination further suggests that a

Hearing Examiner is not

a policymaker.

With regard

pay, the salary for Hearing Examiner is the fifth

to relative

highest of the

13

levels on the OCMA pay scale, not including the Commissioner.

The documents submitted

on summary judgment do not

indicate the

number of employees filling each level of the scale.

the position

employees

the

is ranked

fifth,

a significant

Thus, while

number of

may be paid more than the Hearing Examiner.

trust

classification

is

fifth-tier,

among

actual

Moreover,

eleven

trust

positions in

the OCMA.

Although

the position

is of a

adjudicative

nature, it

does not

require that

an officeholder

possess

law

degree.

responsibilities.

appearances nor

behalf.

only in

Hearing

The

The

position

duties

grant authority

Contact with

neither

carries

elected officials

no supervisory

require

to speak on

quasi-

any

public

the Commissioner's

appears to

take place

the context of a hearing, and in no other context does a

Examiner

act

as

public

spokesperson

for

or

representative of her agency.

Appellees

description's

the

job

attempt

to

maneuver

inherent duties by

description, claiming

around

pointing to item

that

the

the

job

number 61 on

possibility of

being

____________________

Item number 6

states that the

other assigned duties."

-13-

office holder "[c]arries

out

assigned

broad

related tasks

powers.

appellees

The

presented

description, to

transforms

summary

two

judgment

exhibits,

support this

the position

record

in

contention.

into one

with

indicates

that

addition

to

the

The first of

job

these,

Exhibit VI, appears to be a listing of correspondence received by

the

Office

various

of

Legal

Affairs

municipal concerns.

Rold n for resolution.

The

on this list were assigned to

other exhibit, Exhibit VII,

containing

These

inquiries

inquiries were

regarding

assigned to

last date on which any of

the tasks

Rold n is September 24, 1992.

suggests that, as of July

The

28, 1992,

Rold n was assigned by Cerezo's predecessor to monitor the status

of amendments to the Autonomous Municipalities Act.

appellees did

not argue

to the

district court,

We note that

as they do

on

appeal,

that the duties

set forth in

Exhibits VI

and VII were

assigned as "other [] related duties" pursuant to item six of the

job

description, and thus fall

analysis

of

"inherent

district court took into

within the scope

duties."

of the court's

Nevertheless,

because

the

consideration the documents in Exhibits

VI and VII, we address appellees' contention here.

In reviewing the nature of the tasks assigned to Rold n

by Cerezo's

related to

predecessor,

the inherent

it

is

duties of

apparent that

they

Hearing Examiner.

were

not

Instead,

these exhibits are of the very type we have consistently held are

not

to be

position

duties

considered in

entails

of

the process

policymaking.

the position

of determining

We look

under review

and

whether a

only to

the inherent

do not

consider the

-14-

actual

officeholder.

See
___

O'Connor, 994 F.2d at 911; Jim nez Fuentes, 807 F.2d at 242.
________
_______________

The

inherent

tasks performed by a

duties

of

present or past

Hearing

Examiner

relate

only

to

investigating and administering hearings regarding irregularities

and

do

not

developing, or

encompass

providing legal

advising the

advice,

or

Commissioner on proposed

analyzing,

or actual

legislation.

We

certainly cannot

such as that found in

inherent

duties.

Exhibits VI and

tenure

as a

We

catch-all provision

Item 6 to convert all assigned

___

conclude that

VII, which

Hearing

allow a

the

duties set

were assigned to

Examiner, are

not

tasks into

forth

Rold n during

tasks related

to

in

her

her

position and thus cannot be properly characterized as assigned in

accordance

with item number 6.

They are actual duties performed

by a past officeholder, and not inherent duties.

We

recognize that,

in past

cases, we have

granted a

modicum of deference to the Puerto Rico legislature's designation

of

a particular

e.g.,
____

position as

Figueroa-Rodr guez v.
__________________

"trust"

or "confidential."

L pez-Rivera, 878 F.2d

____________

(1st Cir. 1989); Juarbe-Angueira

See,
___

1478, 1481

v. Arias, 831 F.2d 11,

14 (1st

_______________

Cir. 1987); Raffucci Alvarado, 816

_________________

807 F.2d at 246.

(a)

F.2d at 822; Jim nez Fuentes,

_______________

We accorded deference because

Puerto Rico's

permits

_____

a fairly

own civil

service system

small number

of positions

(no more than 25 per agency) to be classified

as confidential (i.e., potentially subject to
____
politically-based discharge),

P.R. Laws Ann.

tit. 3,

1987); (b) the

1351 (1978 & Supp.

personnel law bases

the classification of

confidential position on criteria

those
(whether

enumerated
the

job

in

Elrod
_____

similar to
and

Branti,
______

involves "formulation

-15-

of

public
1350,

policy," P.R.
or

"direct

Laws

service

subhead of

the agency

degree

personal

of

Bylaws:

Areas

Principle,

familiar

and

tit. 3,
the

head or

which require
trust," P.R.
to

(1976));

and

issues and

a high

Personnel
the

administrators

with the

potentially may

to

Essential

5.2

legislators

Ann.

Merit

(c)
are

the
more

subjects that

affix a particular

job at a

particular time with a "political charge."

Figueroa-Rodr guez, 878

__________________

to

F.2d at 1481.

grant deference to the

"confidential" position

position

specific

as

Nevertheless, we decline

designation of Hearing

here, when the plan

confidential

duties discussed

took

into

above and

Examiner as a

that designated the

consideration

merely suggested

the

five

that the

Hearing Examiner "has broad

initiative

and considerable freedom to exercise

and his own judgment in the performance of his work."

See Def. Exh. IV to Motion for Summary Judgment.

___

considered

the job duties of

We have already

the position above

and found them

insufficient to indicate that the position entails

Having

"freedom

performance

of

consideration

contention

at

least

exercise .

[one's] work"

of the

that

discretion.

to

does

position and

the

position

In addition,

two tiers

of

[one's]

not go

judgment in

beyond

does not

involves

policymaking.

as

our earlier

support appellees'

the

use

that the same plan labels

secretaries

the

trust or

of

broad

drivers and

confidential

employees suggests that these categories are overly broad.

Based on the summary judgment record, we hold that

position

of

Hearing

Examiner

is

not

one

for

which

the

party

affiliation is an appropriate requirement.

II.
II.

Qualified Immunity
Qualified Immunity

-16-

In their request for

contended,

summary

doctrine

as they

judgment

of

do

on

qualified

summary judgment below, appellees

on appeal,

the

basis

immunity

that

of

they are

qualified

protects

entitled

immunity.

defendants in

to

The

their

individual

capacities

"Qualified

immunity

from

liability

shields

government

discretionary functions

when

their

statutory

conduct

authority

from civil

does

or

not

violate

constitutional

F.2d 701, 704 (1st

immunity'

as long as the

of partisan political

modicum

of policymaking

or

878 F.2d at 1480

damages.

performing

'clearly

rights

damages

established'

of

which

Nereida-Gonz lez v. Tirado________________

_______

In

the context of

"a defendant enjoys 'qualified

job in question 'potentially concerned

matters

information,

officials

Cir. 1993).

political discrimination charges,

money

liability for money

reasonable person would have known."

Delgado, 990
_______

for

interest and involved

responsibility, access

official communication.'"

at least a

to confidential

Figueroa-Rodr guez,
__________________

(quoting M ndez-Palou v. Rohena-Betancourt, 813

____________

_________________

F.2d 1255, 1259 (1st Cir. 1987)).

In

earlier

political discrimination

cases,

we found

defendants entitled to qualified immunity because their allegedly

unconstitutional actions

took place prior to

clearly established

in

law

this area.

the development of

See,
___

e.g.,
____

Nereida________

Gonz lez, 990 F.2d at 704 (granting defendants qualified immunity

________

because

prior to

allegedly

clear

1989,

a period

that encompassed

unconstitutional demotions and

defendants'

transfers, it

was not

whether Elrod and Branti applied); Valiente v. Rivera, 966

_____
______
________
______

-17-

F.2d 21, 23 (1st

F.2d

1029 (1st

discrimination

Cir. 1992) (same); N ez-Soto v.

__________

Cir.

1990)

cases

Figueroa-Rodr guez,
__________________

was

(state

not

863 F.2d at

of

clearly

the

law

Alvarado, 918
________

in

established

political

in

1985);

1040 (recognizing that although

Elrod and Branti clearly prohibited discharge of non-policymaking

_____
______

state

employees for

delineate the scope of

was

partisan reasons,

this circuit had

yet to

positions for which political affiliation

appropriate); De Abadia, 792 F.2d at 1190 (noting that Elrod

_________
_____

and Branti marked a dramatic departure from prior law and further
______

observing

future

based

"official cannot be

course of constitutional

omitted)).

on May

that an

law" (internal

This case is different.

6, 1994.

The

contours of

on party affiliation grew

and early 1990s.

By 1993,

expected to

Appellees

predict the

quotation marks

discharged Rold n

the law regarding

much clearer in

discharge

the late 1980s

this circuit had decided two waves of

political discrimination cases.

At the time appellees discharged

Rold n, this circuit's law regarding discharge based on political

discrimination was indeed clearly established.

To be sure,

edges.

But this

entitlement to

is

the law

not a

the qualified

may still be

borderline

blurred around

case.

immunity defense in

the

In determining

the political

discrimination

position and

the

context, we look only to the inherent duties of a

ask whether the defendant

position in

question was

matters of partisan

modicum

one that

could reasonably believe

"'potentially concerned

political interest and

of policymaking

involved at least

responsibility, access

to confidential

-18-

information,

or

official communication.'"

Figueroa-Rodr guez,
__________________

878 F.2d at 1480.

of

the

We have already found that the inherent duties

position

were

responsibilities that

implementation.

did

We

do

limited

to

not involve

not

discrete,

policymaking

believe

that

technical

or

policy

appellees

could

reasonably believe that the five specified duties of the position

in any way provided Rold n with discretion to devise or implement

policy.

Assigning

her with

a duty related
_______

to those

functions

would not expand her discretion in the position.

As discussed above,

Rold n,

on

position

which

appellees

the additional

rely, were

nor can they be bootstrapped

the device

of item

number 6.

considered

the additional duties

That

not

tasks assigned

inherent

to

to

the

into the position through

the defendants might

assigned to Rold n

have

as part of

the duties inherent in

the position of Hearing Examiner

unreasonable based on the

We

note that

trial to show

should

record at the summary

defendants muster

that the

function of a

includes following the status

assistance directly

has

judgment stage.

convincing evidence

typical Hearing
_______

Examiner

perceived as

that the position

encompassing

these tasks,

they may or may not be entitled to qualified immunity.

not, however, entitled to

at

of legislation and providing legal

to the municipalities and

traditionally been

appears

They are

summary judgment on qualified immunity

grounds.

Appellees suggest that

district

one of the

cases on which

the

court relied, Alfaro de Quevedo v. De Jes s Schuck, 556

_________________
_______________

-19-

F.2d 591 (1st Cir.

1977), is analogous

warrants the opposite conclusion.

on

another case that

of a Hearing Examiner.

F.2d

1478

Cir.

and

The district court also relied

may seem to involve

that

(1st

to the instant case

a position similar to

See Gonz lez-Gonz lez v. Zayas, 878

___ _________________
_____

1989)

(en

banc).

Those

cases

are

distinguishable on two grounds.

First, the

positions at issue in

those cases involved

considerable

discretion

position

issue in

Alfaro de Quevedo,
__________________

Criminal

Justice,

Office

at

of

officeholder to advise

legislation affecting

to

make

and implement

required,

The

the Director

of the

inter
alia,
____________

"the Secretary of Justice

crimes and

policy.

the

on all pending

law enforcement," id.

___

at 593,

draw up proposed legislation, prepare an annual budget, supervise

the

staff of

Proposed

the

Code of

Office of

Criminal

Criminal Justice

Justice, and

for Puerto Rico.

prepare

Id.
___

The

position "gave [the officeholder] a broad discretion to carry out

hazily

an area

defined purposes and to render advice to the Secretary in

that is far

position at

from noncontroversial."

issue in Gonz lez-Gonz lez was that

_________________

Id. at 593.
___

The

of the Director

of the Board

Services.

duties

for

of Appeals

of Puerto Rico's

See Gonz lez-Gonz lez, 878 F.2d at 1482.

___ _________________

were, among others, to

the

Board,

to

Directors

The position

hold

hearings on

make final decisions on all

appeals, to

an annual budget, and

of

Social

supervise 31 employees who worked

establish procedures

appeals, to analyze and

prepare

Department of

the various

to

to recommend rule

Social Services

-20-

changes to the

programs.

Id.
___

In

addition to any adjudicatory

administrative,

1483.

tasks, this position entailed broad

policymaking, and

As our analysis indicates,

supervisory duties.

Id.
___

at

the broad discretion inherent

in these duties is not present in the case before us.

Second,

in

1985 and

Gonz lez-Gonz lez was dismissed

Alfaro

de Quevedo

resigned

in

from his post

1973.

When

the

defendants in those cases ousted the plaintiffs, the state of the

law

with respect to political

state of the

developed

Because

law at the time

markedly since

we must

established

the

firings was poorly

of the discharge in

two opinions

consider whether

constitutional right

defined.

this case had

relied upon

appellees violated

of

which a

The

below.

a clearly

reasonable person

would

have been aware, at the time the adverse employment action

was taken, the outcome of

these two cases is not controlling

on

the issue of qualified immunity.

We also recognize that in prior

cases, we have granted

qualified immunity partially because a defendant might mistakenly

rely on the position's status

as "confidential" or "trust" under

the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit.

3,

1301

1481

et seq.
_______

See, e.g., Figueroa-Rodr guez,

___ ____ __________________

878 F.2d

at

("[I]n the context of qualified immunity, the fact that the

Commonwealth

government had

classified

a particular

job as

trust or confidence position, makes it more difficult to say that

Puerto Rican official should have known that the law 'clearly'

forbids dismissal.");

Juarbe-Angueira,
_______________

831 F.2d

at 14

(same);

Raffucci Alvarado,
__________________

816 F.2d

at 821-22

(same).

Based

on our

-21-

discussion of the manner

were classified,

we do

reasonably relied

discharge of Rold n

in which this and other

not believe

OCMA positions

that defendants

on this designation in

could have

determining that their

for political reasons was consonant with her

constitutional rights.

CONCLUSION
CONCLUSION

For the foregoing reasons, we reverse and remand to the

reverse
remand
_______
______

district court for proceedings consistent with this opinion.

-22-