Mildred I. Goyco De Maldonado v. Jose A. Rivera, Etc.

TORRUELLA, Circuit Judge

(dissenting).

With due respect I believe the majority’s decision is flawed as a matter of law. This error is in part the result of the obfuscation wrought onto the field of political discrimination actions by the unremitting line of decisions issued by this circuit which refuse to follow the plain mandates of the Supreme Court in Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980) and Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

I will not reiterate what I have previously stated 5 regarding this court’s fallacious application of the standard for determining whether the applicable law was clearly established at the time of the official action. Compare Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806, 2816 , 86 L.Ed.2d 411 (1985) (“All [the appellate court] need determine is a question of law: whether the legal norms allegedly violated by defendant were clearly established....”) (emphasis supplied), with Méndez-Palou v. Rohena-Betancourt, 813 F.2d 1255 , 1259 (1st Cir.1987) (whether “it was clearly established that employees in the particular position at issue, in light of the responsibilities inherent in those positions, were protected from patronage dismissal”) (emphasis in original). See also Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 3038-39 , 97 L.Ed.2d 523 (1987) (“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 it is to say that in the light of preexisting law the unlawfulness must be apparent.”). Cf. Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986) (a different standard applied than in political discharge cases); Cortés-Quiñones v. Jiménez-Nettleship, 842 F.2d 556 (1st Cir.1988) (same).

Nor will I quibble with the majority’s snubbing of De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir. 1986) (en banc), cert. denied, — U.S.-, 107 S.Ct. 1886 , 95 L.Ed.2d 494 (1987), which more and more is looking like a waif in the wilderness. Although I concede that the procedural posture of De Choudens was not that of the present appeal, its doctrine should have shed some light on the majority’s opinion here given that it is factually indistinguishable from this case.

Irrespective of that situation I am compelled to stand fast against my brothers’ struthious determination to ignore the relevance of a regulation which specifically eliminates partisan politics as a condition of employment. This action totally overlooks the employer's own answer to the only *691 relevant issue in political firing cases: whether political membership is “an appropriate requirement for the effective performance of the public office involved.” See Branti, 445 U.S. at 518 , 100 S.Ct. at 1295 .

Following established technique in these cases, 6 the majority looks to the OP-16 (the job description) to determine the duties of the appellee for the purpose of establishing whether political affiliation is an appropriate requirement of the position. This, of course, is proper. Note, however, that this method of analysis is applied as a means of determining whether party affiliation is a proper standard on which to base employment decisions. In this case, such an analysis is superfluous: the employer’s own regulation states that party affiliation is not a requirement for any position at the agency. This analysis is not as the majority suggests, based on finding a constitutional violation through a transgression of state law. See ante at 687-688. Rather, in this case, the regulation merely provides a clear expression by the employer that party affiliation is not a valid job requirement. 7 In essence, the regulation represents a statement by the employer that political considerations are not to be an element in decision making within the agency. The effect of the regulation and its obvious intent, therefore, is to implicitly include in the OP-16 job description a mandate that the employee, while carrying out his or her duties, is to make no decisions on the basis of party politics.

The fact that the prohibition is contained in a separate document than the OP-16 makes it no less binding on this court for the purpose of determining whether party membership is “an appropriate requirement for the effective performance of the public office involved.” In finding that the employer could in good faith use political affiliation as a basis for an employment decision, the court is promoting the violation of this regulation. By ignoring that regulation, we are in effect federalizing a discriminatory practice that the employer has specifically eliminated. This court has added party membership as an “appropriate” requirement for effective performance of the office, a condition which the entity best familiar with the needs of the job, the State, has excluded as in appropriate. This court lacks the authority to make party membership an “appropriate” requirement for holding this position against the express wishes of the State, the employer.

Because the anti-discriminatory regulation was in effect since 1977, long before appellant’s actions took place, even accepting the erroneous Mendez Palou standard for determination of whether the legal norm was clearly established, appellant should be denied qualified immunity. In Branti in 1980 the Court affirmed the lower court in striking down the patronage discharge of public defenders. In 1985 when Goyco de Maldonado was discharged as a result of political patronage, the “unlawfulness [of this action] must [have been] apparent.” Anderson v. Creighton, 107 S.Ct. at 3039 .

For the above reasons I dissent.

. See De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1204-09 (1st Cir.1986) (Torruella, J., dissenting); Rosado v. Zayas, 813 F.2d 1263, 1267-73 (1st Cir.1987) (Torruella, J. dissenting); Rodriguez Rodriguez v. Muñoz Muñoz, 808 F.2d 138, 149-50 (1st Cir.1986) (Torruella, J., dissenting); Juarbe-Angueria v. Arias, 831 F.2d 11, 17-18 (1st Cir.1987) (Torruella, J., dissenting); Raffucci Alvarado v. Zayas, 816 F.2d 818, 822-23 (1st Cir.1987) (Torruella, J., dissenting); Quintana v. Anselmi, 817 F.2d 891, 893-94 (1st Cir.1987) (Torruella, J., dissenting).

. See Jiménez Fuentes v. Torres Gaztambide, 807 F.2d 236, 244 (1st Cir.1986).

. Art. XXX of the same regulation makes it even clearer that the employer intended to insulate these employees from personnel decisions based on party politics. It provides that no employment decisions are to be made in the period of time from two months before to two months after a general election. Its concern obviously is that during such a heated moment in politics, partisan concerns will slip into employment de-cisionmaking.