# Miguel A. Figueroa-Rodriguez v. Jorge L. Aquino, Etc.

> Court of Appeals for the First Circuit · December 9, 1988 · 863 F.2d 1037

URL: https://www.frixlaw.com/law-library/cases/9478501

## Case

- **Full name:** Miguel A. FIGUEROA-RODRIGUEZ, Et Al., Plaintiffs, Appellees, v. Jorge L. AQUINO, Etc., Et Al., Defendants, Appellants
- **Court:** Court of Appeals for the First Circuit
- **Decided:** December 9, 1988
- **Citations:** 863 F.2d 1037; 1988 U.S. App. LEXIS 16627; 1988 WL 130205
- **Precedential status:** Published
- **Opinion:** Concurring in part by Torruella
- **Judges:** Campbell, Torruella, Selya
- **Cited by:** 61 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/9478501

## How later opinions describe it (automated extraction)

- noting that “the measure of damages in section 1983 actions is a matter of federal common law.”

## Opinion text

TORRUELLA, Circuit Judge
(dissenting in part; concurring in part).
In Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980) and Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976), the Supreme Court sought to protect public employees from the ravages of the partisan spoils system, in order to promote First Amendment values as well as to exalt principles of good government. Although we have not yet taken the final, bold step of openly reversing these cases and the tenets for which they stand, in this appeal we come one step closer to this proscribed outcome. By disallowing the grant of back pay to political discriminatees notwithstanding a demonstration of entitlement to equitable relief, the majority further dilutes Branti and Elrod to the point of total ineffectiveness. A brief analysis of the majority’s reasoning on both the qualified immunity and back pay issues suffices to substantiate this conclusion.
I. Qualified Immunity
Three remedies have traditionally been available to political discriminates in actions brought under 42 U.S.C. § 1983 : (1) damages, (2) reinstatement, and (3) back pay. Reinstatement and back pay, although technically separate remedies, have as a matter of course been granted together in equitable actions for specific relief. See Bertot v. School Dist. No. 1, 613 F.2d 245, 250 (10th Cir.1979) (en banc) (“We hold that an award of back pay is an element of equitable relief, and that equitable relief is not precluded by a good faith defense”); Harmon v. May Broadcasting Co., 583 F.2d 410, 411 (8th Cir.1978) (“An award of back pay ... is an integral part of the equitable remedy of reinstatement and is not comparable to damages in a common law action....”); McFerren v. County Board of Education, 455 F.2d 199 , 202 (6th Cir.1972) (“ ‘[B]ack pay is not a claim for damages, but is an integral part of the equitable remedy of injunctive reinstatement’ ”) (quoting Harkless v. Sweeny Independent School District, 427 F.2d 319, 323-24 (5th Cir.1970)); see also Bowen v. *1048 Massachusetts, — U.S. -, 108 S.Ct. 2722, 2732 , 101 L.Ed.2d 749 (1988).
The allowance of damages is subject to the restrictions imposed by the doctrine of qualified immunity, whereby public officials are exempt from the payment of damages in § 1983 actions if they can affirmatively demonstrate that “their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). “All [the court] need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions.” Mitchell v. Forsyth, 472 U.S. 511, 528 , 105 S.Ct. 2806, 2816 , 86 L.Ed.2d 411 (1985). The Supreme Court further refined the meaning of “clearly established law” in Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987), in which it stated:
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 it is to say that in the light of preexisting law the unlawfulness must be apparent. (Citations omitted).
The test for determining what is “clearly established law” in this circuit, however, is different, a difference upon which I have previously had occasion to comment. Goyco de Maldonado v. Rivera, 849 F.2d 683, 690 (1st Cir.1988) (Torruella, J., dissenting); Juarbe-Angueira v. Arias, 831 F.2d 11, 17 (1st Cir.1987) (Torruella, J., dissenting), cert. denied, — U.S. -, 108 S.Ct. 1222 , 99 L.Ed.2d 423 (1988); Quintana v. Anselmi, 817 F.2d 891, 893 (1st Cir.1987) (Torruella, J., dissenting); Raffucci Alvarado v. Zayas, 816 F.2d 818, 822 (1st Cir.1987) (Torruella, J., dissenting); Rosado v. Zayas, 813 F.2d 1263, 1267 (1st Cir.1987) (Torruella, J., dissenting); Rodriguez Rodriguez v. Muñoz Muñoz, 808 F.2d 138, 149 (1st Cir.1986) (Torruella, J., dissenting); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1204 (1st Cir.1986) (Torruella, J., dissenting). The majority opinion highlights the inherent fallacies in the standards adopted by this circuit for these purposes.
The majority states that I would rule “that party affiliation was an inappropriate criterion for most all of Puerto Rico’s executive level positions ... [which] would force a new chief executive to govern through a bureaucracy responsive to officials appointed by a political rival.” See ante at 1041. This characterization of my position states too little, of course. Government employees at all levels must, like federal judges, comply with their oath of office irrespective of who has appointed them to their office. But, “[T]he Court has consistently recognized that mere political association is an inadequate basis for imputing disposition of ill-willed conduct.” Elrod v. Burns, 427 U.S. at 365 , 96 S.Ct. at 2685 . “[E]mployees may always be discharged for good cause, such as insubordination or poor job performance, when those bases in fact exist.” Id. at 366 , 96 S.Ct. at 2686 . See also Mt. Health City Board of Ed. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). That party affiliation is an inappropriate criteria for retaining a government job, executive or otherwise, is not of my invention. See Branti v. Finkel, supra, and Elrod v. Burns, supra. Such a requirement is the exception rather than the rule, as appears to be from the opinions of this circuit.
Applying what is by now circuit rote, the majority concludes that CDC meets the first test of its two part analysis (whether the government agency in question “was involved in politically sensitive activities”). Ante at 1041. But this first test, as construed by the majority, is a non-test. The majority seems to believe that every government agency, department or entity is by its very nature involved in a “politically sensitive activity.” In fact, no governmental agency analyzed by our court for these purposes has ever failed this test. See, e.g., Goyco de Maldonado, supra, (Housing Bank); Fontane-Rexach v. Puerto Rico Electric Power Authority, No. 87-1801 (1st Cir. April 22, 1988) (Power Authority); *1049 Mende z-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987) (Environmental Quality Board; Aqueduct and Sewer Authority; Department of Agriculture); Rosado v. Zayas, supra, (Department of Social Services; Planning Board); De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986) (Government Development Bank), cert. denied, 481 U.S. 1013 , 107 S.Ct. 1886 , 95 L.Ed.2d 494 (1987); Collazo Rivera v. Torres Gaztambide, 812 F.2d 258 (1st Cir.1987) (Rural Housing Administration); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986) (Urban Development and Housing Corporation), cert. denied, 481 U.S. 1014 , 107 S.Ct. 1888 , 95 L.Ed.2d 496 (1987); Juarbe-Angueira v. Arias, supra, (Public Buildings Authority); Quintana v. Anselmi, supra, (Right to Work Administration); Monge Vazquez v. Rohena Betancourt, 813 F.2d 22 (1st Cir.1987) (Department of Natural Resources); De Abadia v. Izquierdo Mora, supra, (Department of Health). If there is any governmental agency which does not satisfy the first test, as construed by the majority, I invite anyone to call it to my attention.
The second part of the circuit analysis suffers from similar infirmities. The inquiry here focuses on the individual position in question, to determine whether its inherent responsibilities allow the incumbent, “at least potentially, to influence political matters” within the agency in question. Ante at 1042. It is difficult, if not impossible, to find a position that could not potentially influence political matters. This is a dragnet from which escape has proved impossible.
In applying these two tests, the majority confers every benefit and presumption to the transgressing official while constitutionally dispossessing the discharged employee. The only way that a defendant could fail the majority’s non-test is if a court had previously held that the very position in question was immune from politically motivated dismissals. Thus, this circuit has transformed a doctrine that was intended to confer qualified immunity, into one that guarantees absolute immunity.
The basic flaw with the majority’s two-prong analysis is that it undermines exactly what the Branti Court considered paramount. There, the Court was striking down discrimination based on political party membership, where “party membership was [not] essential to the discharge of the employee’s governmental responsibilities.” Branti, 445 U.S. at 518 , 100 S.Ct. at 1294-05 (emphasis added). The Court emphatically stated that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. That declaration is not a watered down apologiae for the partisan spoils system; it is a strong policy statement against it. Yet this circuit, in letter and in spirit, fosters exactly the opposite result. The bottom line is that the majority’s lax standards prevent political discrimi-natees from obtaining compensatory damages, “the only realistic avenue for vindication of constitutional guarantees,” Anderson, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 814 , 102 S.Ct. at 2736 ). 9 In this circuit, qualified immunity is tantamount to absolute immunity.
Even if the two-part analysis is accepted, proper application would lead to a different result. A reading of the discriminatee’s duties and responsibilities, ante at 1046-47, would appear to establish that plaintiff’s duties were of a purely administrative or technical nature, falling squarely within the scope of that least-cited and most-ignored circuit precedent, De Choudens v. Government Development Bank, 801 F.2d 5 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1013 , 107 S.Ct. 1886 , 95 L.Ed.2d 494 (1987). 10 When one compares the duties *1050 actually exercised by plaintiff in De Choudens , a case in which we ruled that a senior vice-president of the Puerto Rico Government Development Bank did not hold a position that related to partisan concerns, id. at 10 , with even the most imaginative interpretation of those duties •potentially within appellee’s job description in the present appeal, one is left at a loss to explain the majority’s reasoning or conclusion in granting defendants qualified immunity. I think there was clearly established law to the effect that party affiliation was not an appropriate requirement for the plaintiff’s position. Accordingly, I do not find defendants’ actions protected by qualified immunity.
Even if I were to agree that the defendants’ enjoyed qualified immunity, however, I would still hold that they were liable for back pay. I now turn to the majority’s rulings on reinstatement and back pay.
II. Reinstatement and Back Pay
Reinstatement in political discharge cases is an ineffective remedy when unaccompanied by the payment of the employee’s lost wages or compensation for the damages suffered by him and his family. Reinstatement alone merely places the discharged employee in a hostile environment, subjected to subtle but nevertheless real harassment and intimidation of a kind difficult to prove in court, even assuming that it is actionable. 11 The result is entirely predictable. The reinstated employee will in all likelihood be unable to withstand the chilling pressures to which he will be subjected, as happened in this case. See ante at 1039 n. 2. Reinstatement alone fails to provide an effective deterrent to the recurrence of unconstitutional conduct by the public official. This court cannot in justice continue to overlook these realities of the governmental work-place.
Following traditional principles of equity jurisdiction, the district court in ordering reinstatement also awarded plaintiff back pay as part of the equitable relief. See cases cited supra at 1047. Appellant-defendants raised an Eleventh Amendment immunity defense before the district court in their answer and, after judgment, this defense was renewed in their Rule 59 motion to amend the judgment. They did not, however, pursue this issue on appeal.
The majority, motu proprio, raises and decides this important question. I cannot, of course, technically challenge its power to rule upon this matter in such a fashion. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98 , 104 S.Ct. 900, 906-07 , 79 L.Ed.2d 67 (1984). I do, however, have serious doubts whether, under the circumstances of this appeal, it is wise to proceed by such an expediency. We have not received the benefit of briefs or arguments from the parties. In fact, we have not even notified them that we are considering, much less deciding, this issue. Particularly because of CDC’s de facto waiver of this question on appeal, our failure to give the parties the opportunity to be heard before we consider and decide it borders on a denial of due process.
Furthermore, I do not think that the CDC’s failure to appeal the Eleventh Amendment issue is coincidental or a mere oversight. Defendants-appellants are not pro se litigants. They are represented by the Solicitor General of Puerto Rico. If such a party chose not to claim this defense on appeal we can be certain that it was for a good reason. It should be noted that in all the cases cited by the majority for the proposition that the Eleventh Amendment *1051 bars the back pay recovery, this defense was affirmatively claimed and urged on appeal by the governmental alter ego. See, e.g., Atascadero State Hospital v. Scanlon, 473 U.S. 234, 236 , 105 S.Ct. 3142, 3144 , 87 L.Ed.2d 171 (1985); Pennhurst State School & Hospital, 465 U.S. at 96-97 , 104 S.Ct. at 905-06 ; Edelman v. Jordan, 415 U.S. 651, 657-58 , 94 S.Ct. 1347, 1353-54 , 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 467 , 65 S.Ct. 347, 352 , 89 L.Ed. 389 (1945); Echevarría-González v. González-Chapel, 849 F.2d 24, 32 (1st Cir.1988); Culebras Enterprises Corp. v. Rivera Rios, 813 F.2d 506, 517 (1st Cir.1987); Della Grotta v. Rhode Island, 781 F.2d 343, 345 (1st Cir.1986); Paul N. Howard Co. v. Puerto Rico Aqueduct Sewer Authority, 744 F.2d 880, 882 (1st Cir.1984), cert. denied, 469 U.S. 1191 , 105 S.Ct. 965 , 83 L.Ed.2d 970 (1985); Fernandez v. Chardon, 681 F.2d 42, 46 (1st Cir.1982), aff'd sub nom. Chardon v. Fumero Soto, 462 U.S. 650 , 103 S.Ct. 2611 , 77 L.Ed.2d 74 (1983). Surely the Solicitor General’s actions in withdrawing this issue on appeal must have some significance, particularly after specific adverse rulings had been entered by the district court on this point.
Even assuming this case presents an appropriate opportunity to address this important constitutional question, I would have reached a different result. Whether the CDC is immune from suit under the Eleventh Amendment 12 depends on whether it is the alter ego of the state. See Blake v. Kline, 612 F.2d 718, 721 (3d Cir.1979), ce rt. denied, 447 U.S. 921 , 100 S.Ct. 3011 , 65 L.Ed.2d 1112 (1980). Nine factors are relevant to the resolution of this question:
* * * [L]ocal law and decisions defining the status and nature of the agency involved in its relation to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency’s operations.
Id. at 722 (quoting from Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948 , 90 S.Ct. 967 , 25 L.Ed.2d 129 (1970)).
On the narrow issue of whether CDC is entitled to Eleventh Amendment protection, I believe that we need go no further than the record in this case and the statute creating CDC to find the answer. The CDC was created by 23 L.P.R.A. § 251c (1987). Section 251c(d) specifically states that “[t]he Company shall have legal personality separate from every officer thereof, from the Government of the Commonwealth and from other public corporations. The activities of the Company shall not bind the credit of the Commonwealth of Puerto Rico or its political subdivisions.” Although the purpose of the CDC is to “stimulate private enterprise to promote, initiate and maintain in operation every kind of business activities and commercial centers,” § 251d(a), it “may participate in commercial activities on its own exclusive account,” § 251d(b). Furthermore, CDC has the power to sue and be sued; to acquire, possess, and sell property; to borrow money and issue debt; and to form subsidiaries. See § 251e(d), (h), (j), and (m). The CDC is empowered to receive funds *1052 from private parties to fund its activities. § 251h. The funds of the CDC shall be deposited in qualified depositaries of the Commonwealth, but shall be kept in “the name of the Company.” § 251m. Most important is the provision in Section 251o that states that “[t]he bonds and other obligations issued by the Company shall not be a debt of the Commonwealth of Puerto Rico or of any of its municipalities or other political subdivisions. And neither the Commonwealth nor any such municipalities or other political subdivisions shall be liable thereon, nor shall such bonds or other obligations be payable out of funds other than those of the Company.”
Counter-indicative of governmental independence are provisions that state that the CDC shall be “attached” to the Commonwealth’s Department of Commerce (§ 251c(b)); that the powers of the CDC shall be vested in the Commonwealth’s Secretary of Commerce, who shall be its President (§ 251e(c)); that the CDC may acquire property by condemnation (§ 251g); and that the CDC and its properties are exempt from Commonwealth and municipal taxes and imports (§ 251r).
I am convinced, based on the statute, that CDC is not the alter ego of the Commonwealth for purposes of the Eleventh Amendment. Although some factors suggest otherwise (the main one being that CDC is controlled by the Secretary of Commerce and his nominees), they are outweighed by those factors that point in the opposite direction. CDC is an independent entity that possesses the power to enter into contracts, issue debt, to sue and to be sued. Most persuasive is the fact that Puerto Rico has officially immunized itself from liability for CDC’s operations. I see no reason to remand this case for factual findings on the alter ego issue. Cf. Ainsworth Aristocrat International Pty. Lmtd. v. Tourism Company of the Commonwealth of Puerto Rico, 818 F.2d 1034, 1038 (1st Cir.1984). Even if, arguendo, the district court were to find that the Commonwealth controls CDC and always pays off its debts, I would still hold that Puerto Rico’s sovereign immunity does not bar damage awards against CDC. 13 Puerto Rico cannot distance itself from CDC in state court while simultaneously claiming that CDC is its alter ego in federal court. “Having one’s cake and eating it, too, is not in fashion in this circuit.” United States v. Tierney, 760 F.2d 382, 388 (1st Cir.1985).
This result would make unnecessary our raising and deciding, motu proprio, the broader constitutional question of whether the Eleventh Amendment bars the recovery of back pay in § 1983 actions in federal courts. Because it is axiomatic that federal courts should decide cases on non-constitutional grounds when possible Ashwander v. TVA, 297 U.S. 288, 346-47 , 56 S.Ct. 466, 482-83 , 80 L.Ed. 688 (1936) (Brandéis, J., concurring), I believe the majority errs in addressing the constitutional issue.
Even if I had to decide the constitutional issue, I would hold that the back pay award is not barred by the Eleventh Amendment in this ease. Irrespective of the status of CDC as an alter ego of Puerto Rico, these defendants are also being sued in their personal capacity. No Eleventh Amendment concerns are raised if the monetary relief is not “paid from public funds in the state treasury,” but rather is paid “from the pockets of the individual state officials who were defendants in the action.” Edelman, 415 U.S. at 663, 668 , 94 S.Ct. at 1358 .
Contrary to the contention of the majority, ante at 1042-43 n. 6, I do not believe that the granting of qualified immunity to defendants from an action at law in damages affects the back pay remedy against defendants in their individual capacity, because it is allowable within the court’s equity jurisdiction. The equity jurisdiction of the district courts is unaffected by the doctrine of qualified immunity which concerns the granting of compensatory damages at law. See Wood v. Strickland, 420 U.S. 308 , 315 n. 6, 95 S.Ct. 992 , 997 n. 6, 43 *1053 L.Ed.2d 214 (1975); Brown v. Bathke, 566 F.2d 588, 593 (8th Cir.1977). In distinguishing between a recovery for damages in an action at law and an action in equity for monetary relief, the Supreme Court recently ruled in Bowen v. Massachusetts:
Our cases have long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with back pay ...
108 S.Ct. at 2731-32 .
This is an important distinction in view of the specific language in Section 1983 which pointedly separates the relief available “to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983 . The gravamen of this contention is even more significant when compared to the statutory language in Bowen , in which 5 U.S.C. § 702 was being considered. The issue to be decided was whether Massachusetts’ claim against the Secretary of Health for the retroactive payment of funds was an action at law for money damages, or an equitable claim for relief. The Court held that the language of Section 702 in question, e.g., “[a]n action in a court of the United States seeking relief other than money damages ...,” permitted a declaratory judgment suit in district court which, in addition to declaring the rights of Massachusetts under the federal statute, also ordered the Secretary to pay retroactively the funds it had failed to pay pursuant to its erroneous interpretation of the law, because such a payment was part of the equitable claim for relief.
This is precisely the case as relates to the back pay order entered here by the district judge, separate from the damage awards in the jury verdicts. The district court granted equitable relief in the form of reinstatement and back pay. These orders, as against the individual defendants, should stand as part of the equitable claim for relief which is unaffected by defenses to the legal damages judgment. 14
It should be noted that in deciding cases under Section 1983, federal courts have long recognized the equitable nature of back pay awards. See Whiting v. Jackson State University, 616 F.2d 116 , 122 n. 3 (5th Cir.1980); Moore v. Tangipahoa Parish School Bd., 594 F.2d 489, 494 (5th Cir.1979); Burt v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201 , 1205 (4th Cir.1975); Demkowicz v. Endry, 411 F.Supp. 1184, 1191 (D.C.Ohio 1975); Mabey v. Reagan, 376 F.Supp. 216, 225 (N.D.Cal.1974), rev’d on other grounds, 537 F.2d 1036 (9th Cir.1976); Adamian v. University of Nevada, 359 F.Supp. 825, 831 (D.C.Nev.1973), rev’d on other grounds, 523 F.2d 929 (9th Cir.1975).
It could be argued that the same policy reasons that justify granting qualified immunity to governmental executives in damage actions, e.g., “that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 107 S.Ct. at 3038 , are equally applicable to back pay recoveries against officials in their individual capacity. Accepting such a proposition as valid on its face is misleading within the framework of the actual circumstances of this case. Although the specific coverage varies, in Puerto Rico and 47 other non-federal jurisdictions, statutes *1054 generally provide officials with indemnification from monetary damages in suits such as the present one, as well as providing legal representation for defense in the litigation. 15
In the case of Puerto Rico, the applicable statute is 32 L.P.R.A. §§ 3085-3092a, which provides in § 3085:
Every official, ex-official, employee or ex-employee of the Commonwealth of Puerto Rico who is sued for damages in his personal capacity, when the cause of action is based on alleged violations of the plaintiffs civil rights, due to acts or omissions committed in good faith, in the course of his employment and within the scope of his functions, may request the Commonwealth of Puerto Rico to provide him with legal representation, and to subsequently assume the payment of any judgment that may be entered against his person. Executive Directors, ex-Executive Directors, members and ex-members of the Governing Boards of public corporations and Government instrumen-talities, mayors and ex-mayors and officials and ex-officials of the municipalities shall be covered by these provisions except that, for the payment of judgments they shall be governed by the provisions of section 3092 of this title. Any action brought under the provisions of sections 3077-3084 of this title shall not be covered by the provisions of this section.
Likewise, these provisions shall not be construed, for any reason whatsoever, as making the Commonwealth an insurer of the aforesaid public servants, nor as a waiver of the sovereign immunity of the Commonwealth.
Because of this statute, the fear expressed by the Supreme Court in the Anderson v. Creighton line of cases is totally unfounded with regard to Puerto Rican officials that are sued for back pay in an individual capacity.
Appellee should be entitled to the award of back pay against individual defendants in their personal capacity because the award is against an individual, one who obviously cannot fit the requirement of an alter ego of the state. There is no direct payment from the public treasury — the judgment is against the individual, who can, however, seek indemnity from the state.
III. Reduction of the Back Pay Award
I concur with the majority’s conclusion that interim earnings should reduce the back pay award. There are strong policy reasons in favor of encouraging the mitigation of damages, particularly where equitable relief is being requested.
*1055 IV. Conclusion
This circuit has slowly but surely emasculated the principles espoused by Branti and Elrod . Unfortunately we have received scant subsequent guidance from the Supreme Court as to whether they are still the law of the land. Until the Court clarifies the situation, I cannot understand why alleged discriminatees continue to seek relief under 42 U.S.C. § 1988 in the Federal court for Puerto Rico. Pursuant to the decisions of the Supreme Court of Puerto Rico, which we have refused to follow, see Jiménez Fuentes v. Torres Gaztambide, 807 F.2d at 243 n. 9, the courts of Puerto Rico would presumably grant the relief to litigants which we have denied. See Ramos-Villanueva v. Secretario de Comercio, 112 P.R.R. 514 (1982); Colon v. Urban Renewal and Housing Corporations, 84 J.T.S. 52 (June 4, 1984). Ironically, until such time as the Supreme Court clarifies Branti and Elrod , the first amendment rights of alleged discriminatees will be more effectively protected in the Commonwealth’s courts than in federal courts. In the meantime, because I consider that the majority errs in its interpretation of Branti and Elrod , I shall continue to dissent on this issue in those cases that are litigated in this forum.
. See also Mitchell v. Forsyth, 472 U.S. at 523 n. 7, 105 S.Ct. at 2814 n 7; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 398-411 , 91 S.Ct. 1999, 2005-12 , 29 L.Ed.2d 619 (1971) (Harlan, J., concurring).
. The majority in turn considers that I “ignore” Mendez Palou and Goyco Maldonado. See ante *1050 at 1042-43 n. 6. This is not entirely correct. It would be more accurate to say that I disagree with these cases. See Rosado v. Zayas, 813 F.2d 1263, 1267 (1st Cir.1987) (Torruella, J., dissenting); Goyco Maldonado v. Rivera, 849 F.2d at 690 (Torruella, J., dissenting).
. We are presently engaged in debating whether conduct short of a discharge is actionable under Branti. See Agosto de Feliciano v. Aponte Roque, No. 86-1300, slip op. (1st Cir. Aug. 14, 1987) [ 1987 WL 39747 ] and Torres Hernandez v. Padilla, Nos. 86-1643, 86-1644, slip op. (1st Cir. June 22, 1987) [ 1987 WL 39748 ] opinions withdrawn and en banc pending. The Second Circuit has already decided that a cause of action is stated under 42 U.S.C. § 1983 “whenever under color of state law unfavorable action is taken against a person on account of that person’s political activities or affiliation.” See Lieberman v. Reisman, 857 F.2d 896 (2d Cir.1988).
. The Eleventh Amendment states:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
. A contrary holding, it seems to me, would suggest that judgments against state officers in their private capacity, which are almost always paid by the state, see infra note 13 and accompanying text, are also barred by the Eleventh Amendment.
. Although I am aware that the Sixth Circuit in Stern v. Shouldice, 706 F.2d 742, 750 (6th Cir.), cert. denied, 464 U.S. 993 , 104 S.Ct. 487 , 78 L.Ed.2d 683 (1983) has held otherwise, I do not agree with the reasoning or conclusion reached. In my view whether a remedy is equitable or legal depends not on who is being sued, which is the basis of that court's findings, but on the nature of the remedy sought. See Bertot v. School Dist. No. 1 Albany County, 613 F.2d 245, 250 (10th Cir.1979) ("we hold that an award of back pay is an element of equitable relief and that equitable relief is not precluded by a good faith defense.”). See also Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1187 (11th Cir.1985); Williams v. Owens-Illinois, Inc., 665 F.2d 918, 929 (9th Cir.1982); Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert. denied, 469 U.S. 886 , 105 S.Ct. 260 , 83 L.Ed.2d 196 (1984); Harkless v. Sweeny Independent School District, 427 F.2d 319, 323-24 (5th Cir.1970), ce rt. denied, 400 U.S. 991 , 91 S.Ct. 451 , 27 L.Ed.2d 439 (1971).
. See Ala.Code § 41-9-74 (1975); Ariz.Rev. Stat.Ann. § 12-820 et seq. (1984); Ariz.Stat.Ann. § 12-3401 (1977); Cal.Govt.Code § 825 et seq. (West 1979); Colo.Rev.Stat. § 24-10-110 (1963); Conn.Gen.Stat.Ann. § 29-8a (1984); Del.Code Ann, tit. 10, § 4002 (1979); Fla.Stat. § 111.071 (1985) & § 111.071 (1982); Ga.Code Ann. § 89-973 (1985) (ins. scheme) Recodified as § 45-9-1 (1982); Hawaii Rev.Stat. § 662-14; Idaho Code § 6-903 (1985); Ill.Rev.Stat. ch. 85, §§ 1-101 — 10-101 (1966) ch. 127, § 63b4 (1985) (insurance scheme); Ind.Code Ann. §§ 34-4-16.5-1 — 34-4.16.5-19 (West 1985); Iowa Code Ann. § 25A.21 (West 1985); Kan.Stat.Ann. § 75-6109 (1984); La.Rev.Stat.Ann. §§ 13:5108.-1, 13:5108.2 (West 1985); Me.Rev.Stat.Ann. tit. 14, § 8112 (1980); Md.State Govt.Code Ann. §§ 12-309, 12-310 (1986); Mass.Gen.Laws Ann, ch. 12, § 3E (West 1984) (employees within Executive Office of Human Services or Dept, of Education); Mass.Gen.Laws Ann. ch. 258, §§ 9, 9A, 10 (1984 ed.); Mich.Comp.Laws Ann. § 691.1408 (West 1985); Minn.Stat.Ann. § 3.736(9) (West 1985); Mo.Rev.Stat. § 105.711 (1985); Mont.Code Ann. § 2-9-305 (1983); Neb. Rev.Stat. § 81-8, 239.06 (1981); Nev.Rev.Stat. § 41.0349 (1979); N.H.Rev.Stat.Ann. ch. 99-D (1983); N.J.Rev.Stat. § 59:10-1 et seq. (1984); N.M.Stat.Ann. § 41-4-1 et seq. (1985); N.Y.Pub. Off.Law § 17 (McKinney 1984-1985); N.C.Gen. Stat. § 143-300.16 (1983); N.D.Cent.Code § 32-12.1-15 (1981); Ohio Rev.Code Ann. § 109.36 et seq. (Baldwin 1984) (representation of office or employee); Okla.Stat.Ann. tit. 51, § 153 (1984); Or.Rev.Stat. § 30.285 (1967); Pa. Stat.Ann. tit. 71, § 634 (Purdon 1962) (ins. scheme); R.I.Gen.Laws §§ 9-31-2, 3, 8, 9, 12 (1984); S.C.Code Ann. § 15-77-230 (Law Coop. 1984) (only pertains to motor vehicles); S.D. Comp.Laws Ann. §§ 3-19-1 to -3 (1980); Tenn. Code Ann. §§ 29-20-107 , 205, 310, 404 (1980) (1985 Supp.); Tex.Stat.Ann. art. 6252-56 (Vernon 1985); Utah Code Ann. §§ 63-30-4 , 20, 33, 37 (1978) (1983 Supp.); Vt.Stat.Ann. tit. 12, §§ 5601, 5602, 5605 (1973); Va.Code §§ 8.01-195.3, 195.8 (1984); Wash.Rev.Code Ann. §§ 4.92.060, 4.92.070 (1986); W.Va.Code § 7-14A-2 to 4 (1984) (applies to deputy sheriff only); Wis.Stat.Ann. §§ 893.80, 893.82, 895.46 (1983) (1985 Supp.); Wyo.Stat. §§ 1-39-103, 104, 116 (1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478501. Public record. Not legal advice.