finding it not "clearly established" ________ that regional directorship of public building authority was other than a "political" position, even though it involved only a "'modicum' of 'policymaking responsibility,'" given that supervi- sory position was "moderately-high-level position within the agency"
How later courts described this case
- finding it not "clearly established" ________ that regional directorship of public building authority was other than a "political" position, even though it involved only a "'modicum' of 'policymaking responsibility,'" given that supervi- sory position was "moderately-high-level position within the agency"
- holding that officials are entitled to “qualified immunity unless, at the time of the dismissal, ‘it was clearly established that employees in the particular positions at issue, in light of the responsibilities inherent in those positions, were [constitutionally] protected from patronage dismissal.’ ”
- holding that the “[wjhere, how and when the government will repair or reconstruct public buildings” was of political interest
- distinguishing between category of positions that are mere “jobs for the boys” and positions for which a political broom should be allowed to make a clean sweep
Written by the judges who cited it.
The opinion
TORRUELLA, Circuit Judge
(dissenting).
I continue to adhere by my views expressed in Pérez Quintana v. Gracia Anselmi, 817 F.2d 891, 893 (1st Cir.1987) (dissenting); Rosado v. Zayas, 813 F.2d 1263, 1267 (1st Cir.1987) (same); and in Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 248 (1st Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1888 , 95 L.Ed.2d 496 (1987) (same).
The majority finds today that the function of the Public Buildings Authority (“PBA”) is “at least potentially” one that concerns partisan politics, and that the job of Regional Director involves “at least a modicum of policy making responsibility.” Because the majority concludes that plaintiffs discharge in 1985 did not violate “clearly established” law, defendant is immune from a Section 1983 damages action. See ante at 13, quoting Méndez-Palou, 813 F.2d at 1259 (a defendant enjoys qualified immunity unless it was clearly established that employees in the particular position at issue ... were constitutionally protected).
I have objected before that this watered-down version of Branti creates a “dragnet from which no governmental position can escape,” precisely because “[politicians can potentially disagree on anything and everything.” Rosado, 813 F.2d at 1268 . As applied, this ad-hoc non-standard suggests that the law is unsettled until the position itself, that is, Regional Director of the PBA for the Aguadilla Region, has been litigated before the federal courts. Even this court has been unwilling to go that far in other civil rights cases. In fact the Supreme Court recently ruled otherwise. See Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987); Hall v. Ochs, 817 F.2d 920 (1st Cir.1987). In Anderson the Court, in particularizing the meaning of “clearly established” law, found:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but is to say that in the light of preexisting law the unlawfulness must be apparent.
— U.S. at-, 107 S.Ct. at 3039 .
Of course, if it was “clearly established” at the time that certain domestic employees performing ministerial duties could not be fired for political reasons, Vázquez Rios v. Hernández Colón, 815 F.2d 830 (1st Cir.1987), the illegality of the discharge in this case, too, should have been apparent in 1985. The PBA’s main function is to maintain and to renovate the public infrastructure. The agency is analogous to a janitorial service company in the private sector whose functions do not stimulate political discord. And the defendant has not met the burden of proving that the Regional Director position, as manager of Puerto Rico’s public janitors, is one requiring political affiliation for its effective performance. The uncontroverted facts upon which the majority relies show that the Regional Director offers “technical advice” in regards to the construction and conservation of projects within the region and *18 oversees the execution of contracts with other government agencies. See ante at 15. Regardless of his bombastic title and minimal supervisory responsibilities, the duties of this job are measured strictly by technical or professional criteria, much like the administrative technocrat in de Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1886 , 95 L.Ed.2d 494 (1987), for whom no party affiliation is prescribed. When I compare the work performed by the present appellant with that in de Choudens in which we refused to allow partisan political considerations to prevail as applied to a senior vice-president of the Government Development Bank, I cannot but conclude that we are but one small step away from openly reversing not only that decision but also Branti.
I respectfully dissent.