Eva Raffucci Alvarado v. Carmen Sonia Zayas, Digno C. Giraud Rivera v. Carmen Sonia Zayas, Etc.

TORRUELLA, Circuit Judge

(Dissenting).

For the reasons stated in my dissenting opinion in Alicea Rosado v. Carmen Sonia Zayas, 813 F.2d 1263 (1st Cir.1987) (Torruella, J., dissenting), I cannot concur in the reasoning or outcome of this opinion. This court continues to ignore the clear holding of the Supreme Court in Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980) and to rely on Puerto Rican statutory law for labels (“confidential,” ante at 822; “policy-making,” ante at 821) discarded by that case. Id. at 518 , 100 S.Ct. at 1294 . Yet, while leaning on such statutes the majority overlooks, at the same time, the Puerto Rico Supreme Court’s interpretation of that same law. Franco v. Municipality of Cidra, 113 D.P.R. 260 (1982) (discharge of confidential employee for political affiliation invalid); Clemente Gonzalez v. Department of Housing, 114 D.P.R. 763 (1983); Colon v. Urban Renewal and Housing Corporation, 84 J.T.S. 52 (June 4, 1984). Furthermore, this court continues to apply a different standard in *823 Puerto Rican political discharge cases, in determining what is “clearly established law,” than it does in other civil rights cases, see Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), a standard that is contrary to the ruling in Harlow v. Fitzgerald, 457 U.S. 800, 815-19 , 102 S.Ct. 2727, 2736-38 , 73 L.Ed.2d 396 (1982).

Additionally, I disagree with the majority’s conclusion that appellant has met the burden of proof established by Branti . This burden requires that “the hiring authority ... demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518 , 100 S.Ct. at 1295 . There is no such evidence on the record in either case. See de Choudens v. Government Development Bank of Puerto Rico, 801 F.2d 5, 10 (1st Cir.1986) (en banc). A reading of the questionnaires, the only evidence on the record allegedly in support of appellant’s motions for summary judgment, does not overcome the heavy burden that must be met by appellant. See Elrod v. Burns, 427 U.S. 347, 362 , 96 S.Ct. 2673, 2684 , 49 L.Ed.2d 547 (1976); Buckley v. Valeo, 424 U.S. 1, 94 , 96 S.Ct. 612, 670 , 46 L.Ed.2d 659 (1976). This is particularly the case where, as here, appellant has not even made an affirmation in support of the motions for summary judgment that there was any reliance, or even knowledge, by appellant of the contents of the questionnaires in either case. “In the instant case, care must be taken not to confuse the interest of partisan organizations with governmental interests. Only the later will suffice.” Elrod, 427 U.S. at 362 , 96 S.Ct. at 2684 .

Last but not least, there is a serious question whether there exists interlocutory appellate jurisdiction to consider these matters. There are outstanding state pendent damage actions which are unaffected by the motions for summary judgment. See Kentucky v. Graham, 473 U.S. 159 , 105 S.Ct. 3099, 3106 , 87 L.Ed.2d 114 (1985). Because the personal damage actions will remain to be litigated together with the claims for equitable relief, I have a substantial doubt that we have interlocutory appellate jurisdiction. See also Bever v. Gilbertson, 724 F.2d 1083, 1086-87 (4th Cir.1984), cert. denied sub. nom. Rockefeller v. Bever, 469 U.S. 948 , 105 S.Ct. 349 , 83 L.Ed.2d 285 (1984). Cf. Harlow, 457 U.S. at 819 n. 34, 102 S.Ct. at 2739 n. 34.

I therefore dissent.