Luisa A. De Abadia v. Hon. Luis Izquierdo Mora

LEVIN H. CAMPBELL,

Chief Judge (concurring).

I fully join in Judge Aldrich’s opinion for the court.

Because of Judge Torruella’s extensive dissent, reflecting his view that there is a triable issue of fact underlying the claim of qualified immunity, I think it may be useful to recall what movants (the defendants) were required to establish in order to obtain summary judgment, and to restate what the respective parties in fact presented.

As moving parties for summary judgment, defendants had the burden of show *1194 ing the absence of a factual dispute over material issues relative to their defense of qualified immunity. Hence, the moving papers were required to substantiate the absence of a material issue of disputed fact over whether, at the time they demoted plaintiff, defendants could reasonably have believed that the law was not clearly established against their actions.

In support of their motion, defendants submitted a certified copy of so-called classification questionnaire signed by plaintiff and the Secretary of Health. They asserted that there was no genuine issue of material fact that plaintiffs functions and duties were those listed in that document.

Plaintiff filed an opposition to the motion. She did not dispute that the certified document presented by defendants correctly portrayed the official job description pertaining to plaintiffs position, but she argued strenuously that it did “not state or show that party affiliation is an appropriate requirement for the effective performance of th[e] position.” She also cited to a number of other documents that had already been made a part of the record, in particular to affidavits from two of the plaintiffs predecessors-in-office and the former Secretary of Health averring that (1) while in office, plaintiffs predecessors did not formulate public policy or implement the politics of any given political party; (2) politics was not a factor in the discharge of their functions; and (3) they were not members of the same political party as the then-Secretary of Health. Plaintiff further referred to the affidavits filed by defendants Izquierdo-Mora and Irizarry, and argued that neither one of these affidavits contained “any statement to the effect that de Abadia’s position was a policy making position or that party affiliation [was] an appropriate requirement for the effective performance of the position.” Notwithstanding the foregoing opposition, I believe that defendants succeeded in showing there was no material issue of disputed fact that would preclude an award of summary judgment for defendants on the limited question of qualified immunity, because (1) even assuming that the averments of her predecessors and the former Secretary of Health would be relevant to a merits inquiry, a reasonable person (as Judge Aldrich’s opinion for the court shows) could have disregarded these matters in assessing what the “inherent powers” of her office were; and (2) plaintiff implicitly concedes that the job description submitted by defendants with their motion reflects the official duties of her office, though contending that as a matter of law such duties do not make party affiliation an appropriate prerequisite for the job.

Whether, as a matter of law, these duties do or do not make party affiliation an appropriate prerequisite for the job, seems to me to be a close and difficult question. Although the law seems clear at either end of the Elrod-Branti spectrum, not enough precedent dealing with various upper-level governmental positions in the middle of the spectrum has yet emerged to enable one to easily classify such a position. See Ness v. Marshall, 660 F.2d 517, 520 (3d Cir.1981) (“Guidance from the Supreme Court as to when party affiliation may be ‘appropriate’ is limited to the facts of the Branti case and to a few examples offered by Justice Stevens in his Branti majority opinion.”). Subtle distinctions must be drawn in determining whether a position that occupies this troublesome middle tier falls within the Elrod-Branti exception to the first amendment prohibition against political firings. 1 Not only is there a dearth of post Branti First Circuit authority in this area, but cases from other circuits assessing the merits of political discharge claims brought by upper-level governmental employees have generally found the job to be such *1195 that party affiliation was a permissible consideration. 2

For these reasons, I think defendants could reasonably have believed that the federal law was not clearly established against their actions. While the Puerto Rican courts had indeed issued their own opinions, based mainly on the Commonwealth’s Constitution and laws, the matter before us turns on federal law and, here, I am considerably less clear than is my colleague, Judge Torruella, as to how that law affects offices like this. Our own court is holding an en banc hearing in respect to two recent employment demotion/discharge cases simply because of our own concern over how the United States Supreme Court decisions are meant to be applied. Since the only question before us is what a reasonable person would have known as to the state of the law, and not what the actual answer is in this case, I agree with Judge Aldrich that defendants should be immune from damages by virtue of their qualified official immunity, whatever the eventual outcome of plaintiff’s claim for restoration of her job with back pay. And I emphasize, what Judge Aldrich has said, that the immunity issue is not whether these defendants were subjectively reasonable in their opinion; it is enough that, on the record, their opinion could be found to be objectively reasonable.

. See, e.g., Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982) (Weinstein, CJ.) ("Among the indicia that locate a job along the spectrum between policymaker and clerk are: relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials and responsiveness to partisan politics and political leaders.”).

. See, e.g., Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.) (party affiliation was an appropriate prerequisite for position of First Deputy Commissioner of the Department of Water for the City of Chicago), cert. denied, — U.S.-, 106 S.Ct. 313 , 88 L.Ed.2d 289 (1985); Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1310 (7th Cir.) (per curiam) (party affiliation was an appropriate prerequisite for position of Superintendent of Employment for the Chicago Park District), cert. denied, 464 U.S. 916 , 104 S.Ct. 279 , 78 L.Ed.2d 258 (1983); Mummau v. Ranck, 687 F.2d 9 (3d Cir. 1982) (per curiam) (party affiliation was an appropriate prerequisite for position of Assistant District Attorney). In this connection, it is significant that, with the exception of the Supreme Court’s decisions in Elrod and Brand, the only cases which plaintiff cites in support of her argument that, at the time of her demotion, federal law was "clearly established” against the defendants' right to demote her are two decisions of the Puerto Rico Supreme Court, only one of which expressly purports to be based on a construction of federal as well as of Puerto Rico law.