902 F.

2d 112

Hernan GAZTAMBIDE-BARBOSA, et al., Plaintiffs,

United States Court of Appeals,

Carlos Del Valle with whom Hector Rivera Cruz, Secretary of Justice,
Jorge E. Perez Diaz, Sol. Gen., and Ramirez & Ramirez, Hato Rey, P.R.,
were on brief, for defendants, appellants.
Frank Rodriguez Garcia, Ponce, P.R., for plaintiffs, appellees.
Before BREYER and TORRUELLA, Circuit Judges, and RE,* Judge.
BREYER, Circuit Judge.

In March 1985 the two defendants in this case (Puerto Rico's Secretary of
Housing and the Executive Director of its Housing and Urban Development
Corporation, "CRUV") dismissed the plaintiff from his position as one of
CRUV's Regional Directors; they also dismissed him from the agency. The
plaintiff sued them in federal court, and eventually conceded that defendants
had the legal power to remove him from the policy-making, "trust or
confidence" civil service position of Regional Director. See Jimenez-Fuentes v.
Torres-Gaztambide, 807 F.2d 236, 246 (1st Cir.1986) (en banc), cert. denied,
481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987). The plaintiff pointed
out, however, that he had held a "career" civil service position in Puerto Rico's
Office of Youth Affairs before he became a Regional Director at CRUV. He
claimed that the defendants violated both the First and Fourteenth Amendments
to the federal Constitution when, instead of finding him another equivalent
"career" position, they dismissed him outright from the agency. He asked the

court to award him damages, as well as reinstatement to a career position

The defendants moved for summary judgment. They pointed out that the law
entitles them to assert "qualified immunity"--an immunity from suit for
damages--unless they violated "rights" that "were clearly established at the time
of the conduct at issue." Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012,
3021, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 815, 102
S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982). They said that federal law in 1985
did not offer the plaintiff legal protection (against outright dismissal) that was
"sufficiently clear that a reasonable official would [have understood] that what
he [was] doing violate[d]" the federal law. Anderson v. Creighton, 483 U.S.
635, 640, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987). The district court held
to the contrary, and the defendants now bring an "interlocutory appeal" from its
denial of "qualified immunity." See Mitchell v. Forsyth, 472 U.S. 511, 530, 105
S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (district court's denial of claim of
qualified immunity is immediately appealable despite absence of final
judgment); De Abadia v. Izquierdo-Mora, 792 F.2d 1187, 1190 (1st Cir.1986)
(denial of qualified immunity is immediately appealable even where suit also
seeks injunctive relief).

The defendants accept the legal facts that the Fourteenth Amendment requires
governments to provide "due process" to permanent employees whom they
wish to dismiss, see Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct.
2701, 2709, 33 L.Ed.2d 548 (1972), and that the First Amendment protects
employees from dismissal for reasons of "political affiliation," except where
such affiliation is an appropriate requirement of the job. See Branti v. Finkel,
445 U.S. 507, 517-19, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980); Elrod
v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)
(plurality opinion). They also accept the fact that the plaintiff held a "career"
civil service position in Puerto Rico's Office of Youth Affairs before he
accepted the job of housing Regional Director. They concede, as they must, that
Puerto Rico's civil service law explicitly says:

4
Every
regular employee in a career position who is appointed to a confidential
position shall be entitled to be reinstated in a position equal or similar to the last one
he held in the career service.
5

P.R.Laws Ann. tit. 3, Sec. 1350. Finally, they concede that, if Puerto Rico's law
clearly entitled plaintiff to a "career" position, they could not remove him
without "due process" or for political reasons. Nonetheless, they argue that the
law did not clearly entitle the plaintiff to a career position in Puerto Rico's civil

service; that is to say, once removed from his "trust" position, plaintiff did not
(under Puerto Rico's law) clearly hold any other position in the government.
Hence, the law did not clearly forbid the defendants to remove him outright (for
political reasons or without "due process") from government service. The
defendants make three arguments.
6

1. Defendants say that Puerto Rico's law did not clearly retain plaintiff in a
career position because the law is unclear about whether or not Sec. 1350,
quoted above, applies to a governmental entity like CRUV, which Puerto Rico's
law calls a "public corporation." See P.R.Laws Ann. tit. 3, Sec. 441e. They
argue that such a corporation, exempt from various personnel law requirements
prior to 1976, became an "Individual Administrator" under the Personnel Act of
1975, see P.R.Laws Ann. tit. 3, Sec. 1343, and that Puerto Rico's law does not
require "Individual Administrators" to follow the "reinstatement rule" that Sec.
1350 contains. Their evidence for this legal proposition consists of a sentence
found in another section of the law, which says that

7
Individual
Administrators shall adopt for themselves regulations with regard to the
areas essential to the merit principle, which shall be in keeping with the provisions
of sections 1331-1337 of this title.
8

P.R.Laws Ann. tit. 3, Sec. 1347(1) (emphasis added). They add that "sections
1331-1337" do not contain the "reinstatement rule," which is codified at Sec.
1350 of the same title. And they say that the "reinstatement rule" is not, in any
obvious way, an absolutely essential part of the "merit principle." See EstradaAdorno v. Gonzalez, 861 F.2d 304, 307 (1st Cir.1988).

Were there no other indication of the meaning of Puerto Rico's law, we might
agree that its application to plaintiff's case was unclear. But several other
features of the law, and its application by Puerto Rico's government, clarify any
lurking ambiguities. First, the very section of the Personnel Act that the
defendants quote, Sec. 1347, explicitly says that each Individual Administrator
"shall ... submit[ ]" its regulations "to the [Central Office of Personnel
Administration] for approval." Pursuant to this section, CRUV submitted to the
Personnel Office for approval, and obtained approval of, a regulation that
embodied the "reinstatement principle." CRUV's own regulation says:

10a career employee with a regular status is designated in a trust and confidence
If
position from which he is later removed, he will have the right to be reinstated to a
position equal or similar to the one he occupied in the career service when he was
shifted to the trust and confidence position. The Corporation [i.e. CRUV] will
manage the reinstatement of the employee in any one of its programs and if this is

not feasible, in other governmental agencies.

C.R.U.V. Personnel Rules and Regulations Sec. 4.5.

12

Second, in 1982 the Director of the Central Office of Personnel Administration,

Reinstatement of Trust Employees

Whenever a trust employee is separated from his position and prior to rendering
services in the trust service he held a career position with a regular status, he
will have the absolute right to be reinstated to a position equal or similar to the
last one he occupied in the career service. The responsibility for reinstating the
employee will belong to the agency from which he was separated, which must
exhaust all remedies to reinstate the employee in any of its programs or in other
agencies of the personnel system.

14

This letter says directly that Sec. 1350's "reinstatement rule" applies to CRUV.

15

Third, when the two defendants wrote their joint letter to the plaintiff,
dismissing him from the agency, they said:

16
Pursuant
to the powers vested in me by Law Number 5 of October 4, 1975, as
amended, known as the Public Service Personnel Act, which in Section 5.10
[codified at P.R.Laws Ann. tit. 3, Sec. 1350 ] says that "employees in positions of
trust shall be of free selection and removal" I hereby inform you that from March 20,
1985 on, I will no longer be requiring your services.
17

(Emphasis added.) Thus, in dismissing the plaintiff, the defendants appealed, as

18

Fourth, in prior cases in which the same government officials have dismissed
Regional Directors of CRUV from their positions, "they transferred [them] ... to
the[ir] previously-held positions at CRUV." Jimenez-Fuentes v. TorresGaztambide, 807 F.2d at 238, 246 n. 11.

19

Given these indications in the briefs and in the record about the meaning of
Puerto Rico's law, it seems to us that Sec. 1350, which contains the
"reinstatement rule," applies to CRUV, and that this legal fact was or should

have been clear to CRUV officials at the time of plaintiff's dismissal. Thus, this
case is very different from the case of Estrada-Adorno, supra, to which
defendants look for support, for the applicability of Puerto Rico's personnel law
to the agency in Estrada-Adorno was far less clear. The plaintiff in EstradaAdorno was dismissed from her position in Puerto Rico's Development Bank.
That Bank is not a "public corporation." Rather, it is a "government agenc[y] or
instrumentalit[y] of government operating as [a] private enterprise[ ],"
P.R.Laws Ann. tit. 3, Sec. 1338, and the Personnel Act itself explicitly says that
the provisions relevant here (i.e., Sec. 1350) "shall not apply" to such agencies.
20

2. The defendants also argue that, under Puerto Rico's law, the "reinstatement
rule" does not grant a right of reinstatement to an employee who held a "career
position" in one agency and a "trust and confidence" position in another agency.
At least, they say, it is not "clear" that it does apply. To support this position,
however, defendants can do no more than point to the fact that the statute does
not contain language that explicitly says it does apply in such circumstances.
We should ask, however, what reason there is for thinking the statute does not
apply. What sense would the statute make, how much protection would it offer,
were it inapplicable whenever a civil servant moved among (rather then simply
within) the many individual agencies that comprise the Commonwealth's
government? Indeed, the second sentence of the Personnel Management letter
quoted above (the sentence that gives "responsibility" for reinstatement to the
"agency" where the employee held the "trust" position) would make no sense
were "interagency circumstances" not foreseen. We cannot find significant
ambiguity in the law in this respect.

21

3. Finally, the defendants argue that federal law was unclear, in that it did not
clearly protect the plaintiff's right to be hired. Defendants again point to
Estrada-Adorno, where we said that federal law did not clearly require state
authorities to avoid "political" criteria in hiring, see 861 F.2d at 305, and that it
did not clearly forbid dismissing a personnel director because she refused to
apply such hiring criteria. Id. at 307. This case, however, is not about hiring. It
is about a dismissal from the government. The refusal to find plaintiff a
different position within the same agency amounted, functionally, to a
dismissal from the agency. The Commonwealth statute in question does not
speak of "hiring" or "rehiring" a "trust" employee in a "career" position. Rather,
it speaks of "reinstatement" (and the Spanish word, "reinstalacion," suggesting
something like "reinstallation," is even further removed from the notion of
"hiring"). An outright dismissal and a failure to transfer that has the same effect
would seem too similar, in the circumstances before us, to have reasonably
suggested a significant difference in the application of federal constitutional
law.

22

Since the district court simply denied a motion for summary judgment on the
issue of qualified immunity, the defendants will have an opportunity to present
further evidence on the question at trial. See Hernandez-Tirado v. Artau, 835
F.2d 377, 379 (1st Cir.1989). But on the basis of the record now before us, that
denial must be

23

Affirmed.

APPENDIX
24

Puerto Rico Public Service Personnel Act, P.R.Laws Ann. tit. 3, Secs. 13011431

Sec. 1311
25

(2) To the end of assuring the extension and strengthening of the merit
principle to all sectors of the Puerto Rican public service, all public employees,
whether they are commonwealth or municipal employees with the exception of
those excluded in section 1338 of this title, shall be covered by a single
personnel system, established to enforce the merit principle, which shall be
known as the Public Service Personnel System....

26

(4) The Personnel Administration System shall be divided into the Central
Administration ... and the Individual Administrators mentioned in [Sec. 1343
of] this chapter. (Emphasis added.)

Sec. 1338
27

The provisions of this chapter shall not apply to the following government
branches, agencies and instrumentalities: ....

28

(3) Employees of government agencies or instrumentalities operating as private

Sec. 1343
29

The following agencies shall be Individual Administrators: ...

30

(3) Every agency included by special law in the exempt or noncompetitive

Sec. 1347
31

(1) The Individual Administrators shall adopt for themselves regulations with
regard to the areas essential to the merit principle, which shall be in keeping
with the provisions of sections 1331-1337 of this title. They shall also include
all those areas concerning personnel which, even though they are not essential
to the merit principle, are necessary to achieve a modern and equitable
administration system, and will help to expedite the application of the merit
principle.

32

The regulations of each Individual Administrator shall be submitted to the

Sec. 1349
33

There shall be two services: career and confidential.... The Director shall issue
the general standards that will govern the confidential service personnel
administration throughout the Personnel System [i.e., the system defined by
Sec. 1311(4) as including Individual Administrators]. (Emphasis added.)

Sec. 1350
34

Confidential employees shall be of free selection and removal....

35

Every regular employee in a career position who is appointed to a confidential

The Honorable Edward D. Re, Chief Judge of the United States Court of
International Trade, sitting by designation