# Figueroa-Rodriguez v. Lopez-Rivera > Court of Appeals for the First Circuit · April 25, 1989 · 878 F.2d 1478 URL: https://www.frixlaw.com/law-library/cases/8971730 ## Case - **Full name:** Jose Manuel FIGUEROA-RODRIGUEZ v. Aurelio LOPEZ-RIVERA, etc., Appellant Luis J. GONZALEZ-GONZALEZ v. Carmen Sonia ZAYAS, etc., Appellant Victor M. FONTANE-REXACH v. PUERTO RICO ELECTRIC POWER AUTHORITY - **Court:** Court of Appeals for the First Circuit - **Decided:** April 25, 1989 - **Citations:** 878 F.2d 1478 - **Precedential status:** Published - **Opinion:** Concurring in part by Torruella - **Judges:** Bownes, Breyer, Campbell, Selya, Torruella - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8971730 ## How later opinions describe it (automated extraction) - explaining political considerations are appropriate criteria for positions which potentially concern matters of partisan political interest and involve a modicum of policy-making responsibility, access to confidential information or official communication ## Opinion text TORRUELLA, Circuit Judge (Concurring in part; dissenting in part). I concur with the majority’s conclusion that qualified immunity is not available as a defense to the political discharge of the Assistant Chief of the Supply Division of the Puerto Rico Electric Power Authority. *1487 My concurrence relies, however, on the reasoning of the panel opinion. See Fontane-Rexach v. Puerto Rico Electric Power Authority, et al., 878 F.2d 1493 (1st Cir.1988). I dissent from that part of the Court’s opinion that holds that the political discharges of the Director of the Board of Appeals of the Department of Social Sciences and the two Zone Fire Chiefs of the Puerto Rico Fire Department are subject to qualified immunity defenses. Because I find it difficult to improve upon either Judge Caffrey’s excellent opinion in González-González v. Carmen Sonia Zayas, 878 F.2d 1500 (1st Cir.1988), or Judge Selya’s equally cogent conclusions in Figueroa-Rodriguez v. Aurelio López-Rivera, 878 F.2d 1488 (1st Cir.1988), rather than engage in judicial plagiarism I rely on them as the principal basis for my dissent and refer the reader to their full text published immediately hereafter. I thus limit myself to some brief remarks mandated by several of the majority’s innovative arguments to justify the political discharge of a judicial officer 1 and two firemen. The majority argues that the judicial officer holds a political post because its incumbent can make “changes in procedural policies, such as who has the burden of proof on what type of issue, or the extent to which claimants are entitled to trial-type procedures, [which] while sounding technical to the ear, can also prove politically controversial.” Ante at 1482. To say the least, such an argument is difficult to comprehend much less accept. It can only be made in the context of this Circuit’s standard, which considers any activity as potentially political and in which nothing is excluded. Cf. Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1049 (1st Cir.1988) (Torruella, J., dissenting). I suppose under this standard the political discharge of a National Guard chaplain would be condoned because even religion can potentially be dragged into the partisan political arena. Much time and energy would be saved if the majority would announce de jure its de facto rule to the effect that all government activity is potentially political and thus formally eliminate this non-test from the books. Cf. De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986). Equally fallacious is the majority’s argument to the effect that “an adjudicator, does not automatically (and ‘clearly ’) render ‘political qualifications’ inappropriate.... ([because it is noted] that state judges often must stand for election, and that Presidents may appoint federal judges with political considerations in mind).” Ante at 1483 (emphasis in the original). This is an unfortunate argument which totally misses the point. What is at issue in this appeal is the discharge of an adjudicator for partisan political membership. Even in those states where judges are by law elected officials, they cannot be discharged during their term of office for partisan political reasons. Like all elected officials, of course, they can be voted out of office once their term expires. But they cannot be removed from office during their term for partisan reasons. I assume that the majority will agree that as far as removal from office is concerned the situation with federal judges is totally inappo-site to the present one. I suppose that if this Court can be convinced that the adjudicative process can be political, there is no way to prevent it from reaching the same conclusion with respect to the putting out of fires. I must, however, forcefully point out that firefighters, like adjudicators, are “politically-neutral, technical, and professional employees” pursuant to established Circuit precedent, one which the majority blithely ignores. De Choudens, 801 F.2d at 9 . I dissent as indicated. . Contrary to the majority’s view, the job description of the Director of the Board of Appeals does not reflect "an administrative officer with some adjudicative responsibilities,” ante at 1483, but rather an adjudicator whose principal duty is deciding in an impartial manner “appeals from the beneficiaries” of programs administered by the Department of Social Sciences, id. at 1482, and who also has some administrative duties. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8971730. Public record. Not legal advice.