Sueiro Vazquez v. Torregrosa De La Rosa

United States Court of Appeals

For the First Circuit

No. 06-1499

BERENICE R. SUEIRO VÁZQUEZ; WILFREDO APONTE PAGÁN,

Plaintiffs, Appellants,

ASTRID A. CAPPAS PÉREZ; DELMA ROSA COLÓN RODRÍGUEZ,

Plaintiffs,

v.

ENID TORREGROSA DE LA ROSA, in her personal and official capacity

as Executive Director of the State Historic Preservation Office;

ELIZABETH SOLA; VERÓNICA ÁLVAREZ; JOHN DOE; RICHARD ROE,

Defendants, Appellees,

FRANCISCO CÁTALA,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Lipez, and Howard,

Circuit Judges.

John F. Neváres, with whom Carlos R. Ramírez and John F.

Neváres & Associates, P.S.C. were on brief, for appellants.

Leticia Casalduc-Rabell, Assistant Solicitor General, with

whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana

Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-

Rodríguez, Deputy Solicitor General, were on brief, for appellees.

July 19, 2007

LYNCH, Circuit Judge. A jury found that a new Popular

Democratic Party ("PDP") administration in Puerto Rico had violated

the First Amendment political affiliation and Fourteenth Amendment

due process rights of New Progressive Party ("NPP") members

Berenice Sueiro Vázquez and Wilfredo Aponte Pagán when they were

fired from their positions as employees in Puerto Rico's State

Historic Preservation Office ("SHPO"). The jury also found that

the firings violated Article 1802 of the Puerto Rico Civil Code.

See P.R. Laws Ann. tit. 31, § 5141. The jury awarded substantial

compensatory and punitive damages: $380,000 in total for Sueiro,

and $210,000 in total for Aponte.

After return of the jury verdict, the district court

found that the defendant public officials were entitled to

qualified immunity, and vacated the damages award. Sueiro Vázquez

v. Torregrosa de la Rosa, 414 F. Supp. 2d 124, 134 (D.P.R. 2006).

The court also ordered the SHPO to reinstate Sueiro and Aponte to

their former jobs, holding that the defendants had failed to show

that the plaintiffs' appointments to their positions were null and

void under Puerto Rico law. Id. The plaintiffs appeal the

immunity order which defeated their damages claims; the defendants

purport to appeal the reinstatement order.

On plaintiffs' appeal, we affirm the grant of immunity.

The defendants acted, as they were required to do by law, on the

advice of the Secretary of Justice that Sueiro's employment was

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null and void under Puerto Rico law, and on the Secretary's

instruction to evaluate the legality of other personnel

transactions. On defendants' purported appeal, we hold that the

mere submission of a check for a filing fee to the district court

clerk, without a notice of appeal or any other filing (electronic

or hard copy), is insufficient to notice an appeal under Fed. R.

App. P. 3.

A general description of the case suffices for both

issues.

I. BACKGROUND

Plaintiffs Sueiro and Aponte were employees of the SHPO.

On September 1, 2000, pursuant to Puerto Rico Act No. 183,1 Sueiro

was transferred from a trust position as Assistant Advisor III to

a career position as Historic Conservation Manager. On or about

the same date, Aponte's position as Information Systems Specialist

was reclassified from a trust position to a career position.

1

The Governor of Puerto Rico signed Act No. 183 into law

on August 21, 2000. The Act created the SHPO, which was a

successor to the "Commonwealth Office for Historic Preservation."

P.R. Laws Ann. tit. 3, § 1115(a). The predecessor office was

created by executive order in 1985. Id. Act No. 183 classified

the SHPO as an "Individual Administrator" pursuant to the Puerto

Rico Public Service Personnel Act. Id. § 1111. The act also

provided that all personnel working at the predecessor office would

be transferred to the SHPO. Id. § 1115(b). It is undisputed that

Act No. 183 sought to avoid the complete turnover of professional

staff in the preservation office every time a new governor was

elected.

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Sueiro was terminated from her career position on February 8, 2002;

Aponte's employment was terminated on September 17, 2002.

Sueiro and Aponte sued, alleging violations of their

political affiliation and due process rights under the First and

Fourteenth Amendments of the Constitution and Sections 1, 6, and 7

of Article II of the Puerto Rico Constitution. They also brought

a tort action under Article 1802 of the Puerto Rico Civil Code.

After eleven days of trial, the jury found in plaintiffs' favor.

In its verdict forms, the jury rejected defendants' claims that

they had not discriminated, as well as defendants' defense under

Mt. Healthy City School District Board of Education v. Doyle, 429

U.S. 274, 287 (1977).

The defendants had raised the defense of qualified

immunity for the first time at trial. The district court had

reserved the issue until after the return of a verdict, Sueiro

Vázquez, 414 F. Supp. 2d at 128-29 & n.4, and ultimately found that

the defendants were entitled to qualified immunity, id. at 133. On

the first question of whether a constitutional right had been

violated, the court found that the jury verdict was supported by

evidence that the defendants had violated plaintiffs'

constitutional rights. Id. at 131. The court largely bypassed the

next question of whether such rights were clearly established. Id.

at 132-33. The court held, on the final prong, that qualified

immunity must be granted because the defendants reasonably had

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asked the Secretary of Justice for an opinion regarding the

legality of personnel transfers within the SHPO, and then

reasonably relied on that opinion. Id.

The Secretary's February 1, 2002 opinion stated that

Sueiro's appointment to a career position was "null" because the

prior administration's actions had violated P.R. Laws Ann. tit. 3,

§ 1351(7) (2000 & Supp. 2004). The opinion also directed the SHPO

to evaluate all personnel transfers from trust positions to career

positions as a result of Act No. 183, to ensure that such transfers

were made in accordance with section 1351. As a result of the

review ordered by the Secretary of Justice, Aponte's

reclassification into a career position likewise was found to be

null. Citing a Puerto Rico Supreme Court case, the district court

stated that the Secretary's opinion was binding on defendants,

whether or not the opinion was correct. Sueiro Vázquez, 414 F.

Supp. 2d at 133. The court held that the defendants acted in an

objectively reasonable manner by relying on the Secretary's opinion

in terminating Sueiro and Aponte. Id. at 132-33.

On the question of injunctive relief, the district court

held that there was sufficient evidence to support the jury's

finding that the plaintiffs had a property interest in their

employment, and so the court ordered reinstatement of Sueiro and

Aponte to their former positions. Id. at 134.

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Defendants moved for reconsideration of the reinstatement

order. The district court denied the motion and entered the order

denying reconsideration on March 28, 2006. This started the

running of the 30-day appeal period. See Fed. R. App. P.

4(a)(1)(A); see also 28 U.S.C. § 2107(a).

II. NOTICE OF APPEAL

A. Absence of a Notice of Cross-Appeal from Defendants

On March 31, 2006, the plaintiffs timely appealed from

the grant of qualified immunity and the vacatur of the damages

awards. The plaintiffs' appeal was docketed in our court as No.

06-1499, and a briefing schedule issued.

The defendants did not file a notice of cross-appeal.

However, on April 20, 2006 -- that is, within the 30-day appeal

period -- they paid an appellate filing fee by check to the

district court. The defendants at the time were represented by an

outside attorney, Francisco Rios Rivera. The payment is reflected

on the district court docket in this case as:

Appeal Fee Received $ 455.00, receipt number

162387 Fr: Francisco Rios Rivera (fg, )

(Entered: 04/20/2006)

On August 23, 2006, the defendants, now represented by

the Solicitor General of Puerto Rico, filed a motion in this court

stating that they had only recently realized that attorney Rios

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Rivera had purported to file a cross-appeal.2 The defendants asked

this court to stay the briefing schedule to permit them to pursue

a motion in the district court seeking leave to "correct the

erroneous filing" of the notice of appeal. They represented that

prior counsel had assured them that he had electronically filed the

notice of appeal. They argued, based on that representation, (1)

that the district court must have committed error in not docketing

a notice of appeal, and (2) that the April 20 payment of the filing

fee unambiguously demonstrated (a) their intent to appeal the

reinstatement order, and (b) their belief that their electronic

filing had been effective. They did not, however, file a copy of

the purported notice of appeal as received by the district court.3

Indeed, the defendants admitted that they could not be certain,

despite prior counsel's statement, that their notice of appeal was

ever filed. Their basic argument was that the notice must have

disappeared into the ether of electronic filing.

On August 22, 2006, the defendants had also filed a

motion in the district court requesting leave to "refile" their

notice of appeal. They proffered a copy of their purported notice

2

The defendants explained that the change in legal counsel

was necessary in light of the fiscal crisis faced by Puerto Rico in

April, May, and June of 2006. Due to this crisis, a number of

cases were handed over to the Department of Justice, causing a

significant increase in work for the Solicitor General's office.

3

The defendants did submit a document entitled "Notice of

Appeal" dated April 19, 2006, but there was nothing to suggest that

the document had in fact been received by the district court.

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of appeal. The certificate of service for the notice stated that

the document was electronically filed on April 19. But the

defendants offered no proof that the notice of appeal had ever

actually been filed with the district court. The defendants also

proffered an image of the check for the filing fee that was

docketed as received by the district court on April 20. That check

carried the notation "Notice of Appeal re: Berenice Sueiro." As

they later did before this court, the defendants argued that the

fee payment evidenced both their intent to file a notice of appeal

as well as their belief that their electronic filing had been

effective. The plaintiffs opposed the defendants' request, arguing

that (1) the defendants could not prove that they had in fact filed

a notice of appeal, (2) the payment of the appellate filing fee did

not provide the notice that Fed. R. App. P. 3(c)(1) requires, and

(3) to the extent that the defendants were seeking an enlargement

of time to file a notice of appeal, they did not, and could not,

establish excusable neglect or good cause.

On August 25, 2006, the district court concluded that

since the defendants could not furnish material evidence to show

that they had in fact filed the notice of cross-appeal, and since

the docket did not reflect such a filing, no notice of appeal had

been filed. It rejected the argument that the electronic case

filing system had somehow eaten the notice. The court then

construed defendants' motion as one for an extension of time to

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file a notice of appeal under Fed. R. App. P. 4(a)(5)(A). The

district court concluded that defendants had failed to demonstrate

"excusable neglect or good cause," as required by Rule 4(a)(5)(A),

because a change in legal representation and a suddenly busier

practice are fairly commonplace, and attorneys must be prepared to

deal with the difficulties that attach to both sets of

circumstances.4

B. Federal Rule of Appellate Procedure 3(c)

In its August 23 motion to this court, defendants asked

that they be allowed to challenge the reinstatement order "as part

of the current appeal." That request has no merit. "A party who

neglects to file a cross-appeal may not use his opponent's appeal

as a vehicle for attacking a final judgment in an effort to

diminish the appealing party's rights thereunder." Figueroa v.

Rivera, 147 F.3d 77, 81 (1st Cir. 1998). This is exactly what the

defendants seek to do here. The prohibition on this kind of attack

is "'inveterate and certain.'" El Paso Natural Gas Co. v.

4

The defendants moved for reconsideration, arguing that

the timely payment of the filing fee constituted material evidence

establishing that they had "engaged in the filing" of the notice of

appeal and believed that they had done so successfully, and that it

was at least as likely that the lack of reflection of this filing

on the docket was a failure of the electronic system itself, rather

than a failure of counsel.

The district court summarily denied the defendants'

motion for reconsideration. The defendants have not appealed this

ruling. The defendants' failure to appeal the district court's

denial of their request to "refile" the notice of appeal precludes

them from arguing that the district court erred or abused its

discretion in so ruling.

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Neztsosie, 526 U.S. 473, 479 (1999) (quoting Morley Constr. Co. v.

Md. Cas. Co., 300 U.S. 185, 191 (1937)). The cross-appeal

requirement "is not there to penalize parties who fail to assert

their rights, but is meant to protect institutional interests in

the orderly functioning of the judicial system, by putting opposing

parties and appellate courts on notice of the issues to be

litigated and encouraging repose of those that are not." Id. at

481-82.

We turn to the legal question of whether the recorded

payment of the appellate filing fee suffices to notice an appeal.

Fed. R. App. P. 3(c) is entitled "Contents of the Notice of Appeal"

and identifies the requisite elements of a notice of appeal:

(1) The notice of appeal must:

(A) specify the party or parties taking the

appeal by naming each one in the caption or

body of the notice, but an attorney

representing more than one party may describe

those parties with such terms as "all

plaintiffs," "the defendants," "the plaintiffs

A, B, et al.," or "all defendants except X";

(B) designate the judgment, order, or part

thereof being appealed; and

(C) name the court to which the appeal is

taken.

The Rule further states that "[a]n appeal must not be dismissed for

informality of form or title of the notice of appeal, or for

failure to name a party whose intent to appeal is otherwise clear

from the notice." Fed. R. App. P. 3(c)(4).

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The filing of a notice of appeal is a jurisdictional

requirement. See Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007);

see also Becker v. Montgomery, 532 U.S. 757, 765 (2001). The

requirements of Rule 3 are liberally construed,5 and we may find

that a litigant "has complied with the rule if the litigant's

action is the functional equivalent of what the rule requires."

Smith v. Barry, 502 U.S. 244, 248 (1992) (quoting Torres v. Oakland

Scavenger Co., 487 U.S. 312, 316-17 (1988)) (internal quotation

marks omitted). Smith held:

While a notice of appeal must specifically

indicate the litigant's intent to seek

appellate review, the purpose of this

requirement is to ensure that the filing

provides sufficient notice to other parties

and the courts. Thus, the notice afforded by

a document, not the litigant's motivation in

filing it, determines the document's

sufficiency as a notice of appeal.

Id. at 248 (emphases added) (citations omitted).

The defendants' mere payment of the appellate filing fee

fails to meet this test. The check itself was not a filing in the

record, and so could not give sufficient notice of appeal. Checks

are not kept in the clerk's office -- they are presented for

payment. The docket entry memorializing the payment of the fee is

not itself a "filing" or "document." The defendants have offered

5

Other parts of the Federal Rules of Appellate Procedure

pertinent to the filing of a notice of appeal require strict

adherence. See Bowles, 127 S. Ct. at 2366 (rejecting a "unique

circumstances" exception to requirement that notice of appeal be

timely filed).

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no evidence that there was any such filing or document attached to

the payment. Indeed, this court has inquired of the district court

whether a cover letter accompanied the check. A search was

conducted, and nothing was found. Moreover, the defendants concede

that the PACER electronic filing system did not reflect the filing

of any notice of appeal.

None of the cases relied on by the defendants is on

point.6 Courts have found filings (rather than the mere payment of

an appellate filing fee) to constitute the functional equivalent of

a notice of appeal. See, e.g., Intel Corp. v. Terabyte Int'l,

Inc., 6 F.3d 614, 617-18 (9th Cir. 1993) (opening appellate brief);

McLemore v. Landry, 898 F.2d 996, 999 (5th Cir. 1990) ("inartfully

drawn" notice of appeal). Here, there was no such filing at all.

We reject the defendants' argument that it is the intent

of the would-be appellant which is dispositive. The argument

ignores the interest in assuring that a party's filing provides

adequate notice to other parties and the courts. See Smith, 502

U.S. at 248-49. The plaintiffs were never served with a copy of

even the check, much less a notice of appeal. The defendants argue

that the district court and the plaintiffs did have notice: they

should have known from the timing of the payment of the filing fee

6

The defendants are public officials, and their reliance

on pro se cases does not advance their cause. See, e.g., Barrett

v. United States, 105 F.3d 793, 794-96 (2d Cir. 1996) (per curiam),

Turner v. Armontrout, 922 F.2d 492, 494 (8th Cir. 1991); Grune v.

Coughlin, 913 F.2d 41, 43 (2d Cir. 1990).

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from what orders an appeal was taken, and which parties were

involved in the appeal. This argument has no purchase where the

would-be appellant can point to no filing that provided sufficient

notice. See id. at 248-49; cf. McLemore, 898 F.2d at 999.

Absent more, the submission of a check to the clerk in

the amount of the filing fee, even with a legend on the check, is

not the functional equivalent of a notice of appeal. "Th[e]

principle of liberal construction [of Rule 3] does not . . . excuse

noncompliance with the Rule." Smith, 502 U.S. at 248. The

defendants' purported cross-appeal is dismissed.

III. QUALIFIED IMMUNITY

The plaintiffs appeal from the district court's post-

verdict grant of qualified immunity. We employ de novo review of

the legal conclusions. See Borges Colón v. Román-Abreu, 438 F.3d

1, 18 (1st Cir. 2006).

In this circuit, we have utilized a three-part test for

qualified immunity. See Tremblay v. McClellan, 350 F.3d 195, 199

(1st Cir. 2003). Other circuits have used a test that addresses

the same issues, considered in two steps. See, e.g., Davis v. City

of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007); Papineau v.

Parmley, 465 F.3d 46, 55 (2d Cir. 2006).

The district court decided the first of the immunity

questions -- whether there was a violation of constitutional rights

-- in favor of plaintiffs. Sueiro Vázquez, 414 F. Supp. 2d at 131.

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Under our immunity law, the second question is whether the

constitutional right was clearly established at the time of

violation. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 7 (1st Cir.

2005). The final question is "whether a reasonable officer,

similarly situated, would understand that the challenged conduct

violated the clearly established right at issue." Borges Colón,

438 F.3d at 18-19 (quoting Riverdale Mills Corp. v. Pimpare, 392

F.3d 55, 61 (1st Cir. 2004)) (internal quotation marks omitted).

The district court did not decide whether the plaintiffs' rights

were clearly established in the specific context of this case, and

instead based its holding on the third prong of our immunity

inquiry. Sueiro Vázquez, 414 F. Supp. 2d at 132-33. We agree with

the district court that the defendants are entitled to immunity on

the third prong.7

The facts do not permit a finding that these defendants

would have understood that they were violating clearly established

rights of the plaintiffs. Puerto Rico law requires executive

branch public officials to act in accordance with the opinion of

the Secretary of Justice when those officials seek clarification

7

The parties have not adequately briefed the first two

prongs, and the better course is not to address the constitutional

question, particularly where addressing such a fact-specific

question will not well serve a law clarification function.

See Riverdale Mills, 392 F.3d at 62; Dirrane v. Brookline Police

Dep't, 315 F.3d 65, 69-70 (1st Cir. 2002); see also Morse v.

Frederick, 127 S. Ct. 2618, 2007 WL 1804317, at *20-22 (2007)

(Breyer, J., concurring in the judgment in part and dissenting in

part).

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from the Secretary.8 See Colegio de Ingenieros y Agrimensores de

P.R. v. Autoridad de Acueductos y Alcantarillados de P.R., 131 P.R.

Dec. 735, 775 (1992) (recognizing that the Secretary of Justice's

opinions bind those administrative agencies that seek his or her

advice). The defendants acted in accordance with the opinion of

the Secretary of Justice that as a matter of Puerto Rico law

Sueiro's appointment to her career position was wrongful, and with

the Secretary's instruction that other personnel transfers pursuant

to Act No. 183 be evaluated. The advice specifically applied to

the transactions which are the subject matter of this suit.9

The Secretary provided an opinion to defendant Torregrosa

de la Rosa about plaintiff Sueiro, on which defendants reasonably

relied. That opinion unequivocally concluded that Sueiro's

appointment to the career position of Historic Conservation Manager

was contrary to the Puerto Rico Public Service Personnel Act, see

8

In its opinion and order, the district court stated that

Torregrosa de la Rosa "was required to act in accordance with the

Secretary's Opinion." Sueiro Vázquez, 414 F. Supp. 2d at 133.

Plaintiffs have not disputed this proposition, either in the

district court or in this court. Thus, for purposes of this case,

we assume that defendants were under such an obligation.

9

Citing U.S.I. Properties Corp. v. M.D. Construction Co.,

860 F.2d 1, 8 (1st Cir. 1988), the plaintiffs argue that immunity

was inappropriate based on the Secretary's opinion because the

Secretary's views are not binding on the courts. The argument

misses the point. Regardless of whether courts are similarly

bound, plaintiffs have not disputed that the defendants were under

an obligation to follow the Secretary's opinion.

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P.R. Laws Ann. tit. 3, § 1351(7), and was "null and consequently

ineffective."

The Secretary also directed Torregrosa de la Rosa to

evaluate all personnel transactions stemming from the

implementation of Act No. 183, in light of the requirements of

section 1351. As a result, the defendants engaged an outside human

resources expert, Ana Bonet, to perform an audit. Bonet concluded

that Aponte did not meet the statutory requirements necessary for

the career position to which he had been appointed in 2000,

following the logic of the Secretary's opinion. Defendants

reasonably relied on this conclusion.

"Under Puerto Rico law, personnel appointments made in

violation of Commonwealth laws and regulations normally 'are null

and void ab initio.'" Vázquez-Valentín v. Santiago-Díaz, 459 F.3d

144, 149 (1st Cir. 2006) (quoting González-de-Blasini v. Family

Dep't, 377 F.3d 81, 86 (1st Cir. 2004)). Officials similarly

situated to defendants would have reasonably believed that since

the plaintiffs' appointments to their career positions were null

and void, it would not violate the plaintiffs' clearly established

constitutional rights to terminate their employment from positions

they were not entitled to hold.10

10

Plaintiffs have not argued that it would be unreasonable

for a public official to terminate an employee based on a finding

that the employee's transfer was null and void. Cf. Morales-

Santiago v. Hernández-Pérez, --- F.3d ---, No. 06-1459, 2007 WL

1491880, at *5 (1st Cir. May 23, 2007) (noting the propriety of an

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Reliance on advice of counsel alone does not per se

provide defendants with the shield of immunity. For example, in

Borges Colón, an advice of counsel defense failed to establish

qualified immunity. There, the defendant mayor did not claim to be

bound by legal advice, and there was evidence that he had lied and

that he did not in fact get approval for his reorganization plan

from a human resources director and a municipal attorney; further,

the mayor had admitted to others that the reorganization plan was

a subterfuge to fire members of the opposition political party.

Id. at 7, 12, 16-17.

This case does not involve advice from private counsel,

who may have financial incentives to provide exactly the advice the

client wants. Rather, it involves advice from the office of the

Secretary of Justice of Puerto Rico, which has much broader duties

and obligations. Reliance on the advice of Puerto Rico's chief

legal officer, advice the defendants were required to follow by

Puerto Rico law, was not unreasonable here. See Swanson v. Powers,

937 F.2d 965, 971-72 (4th Cir. 1991). We leave for another day the

hypothetical situation in which there is very strong evidence that

newly appointed or elected defendant state officials acted in

conspiracy with the chief public legal officer to produce and act

on plainly unreasonable legal advice meant to result in the

administration's "tak[ing] corrective actions to undo [unlawful]

preferential salary adjustments").

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violation of a plaintiff's clearly established rights under federal

law. Cf. Vance v. Barrett, 345 F.3d 1083, 1094 n.14 (9th Cir.

2003).

This case does not come close to being that situation.

Plaintiffs ask us to get into the legal question of whether the

Secretary of Justice correctly or even reasonably interpreted

Puerto Rico law as to whether plaintiffs' appointments were null

and void. That is not an appropriate inquiry for the federal court

engaged in an immunity analysis. Even if the Secretary's advice

were wrong or not even within the reasonable range of

interpretations (and the Secretary's advice was within a reasonable

range), that would not itself mean that reasonable officials in the

position of defendants would understand that they were acting in

violation of plaintiffs' clearly established constitutional rights.

At oral argument, plaintiffs argued that Torregrosa de la

Rosa's request for an opinion from the Secretary contained a

"mischaracterization" of Sueiro's job duties and description, that

this mischaracterization was motivated by political discrimination,

and that this led the Secretary astray. Other circuits have denied

immunity to officers in Fourth Amendment cases where officers

manipulate evidence to mislead a prosecutor into authorizing an

arrest. See, e.g., Sornberger v. City of Knoxville, 434 F.3d 1006,

1016 (7th Cir. 2006). Further, in Cariglia v. Hertz Equipment

Rental Corp., 363 F.3d 77 (1st Cir. 2004), we outlined a theory of

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liability for employment discrimination by a corporate employer

when a subordinate motivated by discrimination provides erroneous

information to an unwitting superior who acts on that information

to terminate a plaintiff's employment. Id. at 85-88; see also

Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003); Abramson v.

William Paterson Coll., 260 F.3d 265, 285-86 (3d Cir. 2001);

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.

1997).

We leave for another day whether there is an analogy to

these cases for mandated reliance on advice of the Secretary of

Justice in a First Amendment political termination case which turns

on a state law classification issue. This theory was not raised in

the district court, nor was it raised in the plaintiffs' opening

brief in this court, and it is twice forfeited. See Teamsters

Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st

Cir. 1992) (arguments not advanced in the district court cannot be

raised for the first time on appeal); Sandstrom v. ChemLawn Corp.,

904 F.2d 83, 86-87 (1st Cir. 1990) (arguments not asserted in

appellant's opening brief cannot be raised for the first time in

reply brief).

The judgment of the district court is affirmed. No costs

are awarded.

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