Appendix — Chardon v. Fumero Soto
Supreme Court brief1983
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UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 81-1567
81-1607
JuAN Fumero Soro, Et AL.,
Plaintiffs-Appellees-Cross-Appellants,
Vv.
CarLos CHARDON, Etc., Et AL.,
Defendants-Appellants-Cross-Appellees.
Before Corrin, Chief Judge,
Ginson,* Senior Circuit Judge,
and Bownes, Circuit Judge.
ORDER OF COURT
Entered July 28, 1982
The motion of Chardon and Ramos, defendants-appellants,
for stay of mandate pending application to the Supreme Court
for a writ of certiorari is granted upon the condition that said
application is filed by August 16, 1982, and the Clerk of this
Court is given notice thereof.
The petition for rehearing on modification of judgment is
denied. The date of filing is controlled by the Federal Rules and
Federal Rule of Civil Procedure 6 expressly excludes from
computation “a Saturday, a Sunday or a legal holiday” and
* Of the Eighth Circuit, sitting by designation.
2a
Federal Rule of Appellate Procedure 26 contains the same
exclusion.
By the Court:
/s/ Dana H. Gallup
Dana H. GALLuP
Clerk.
3a
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 81-1567
81-1607
JUAN Fumero Soro, Et AL.,
Plaintiffs-Appellees-C ross-Appellants,
v.
Car_os Cuarpon, Etc., Et AL.,
Defendants-Appellants-C ross-Appellees.
By Corrs, Chief Judge,
Ginson,* Senior Circuit Judge,
and Bowes, Circuit Judge.
ORDER OF COURT
Entered July 6, 1982
The petition for modification of judgment by plaintiffs-
appellees and cross-appellants is granted. Those plaintiffs who
received their letters of demotion on June 17, 1977, or there-
after are not time-barred. The last two lines on page 31 of the
slip opinion and the first two lines on page 32 should be changed
to read as follows:
In Nos. 81-1567 and 81-1607, Juan Fumero Soto, et al. v.
Chardon, et al., the liability judgment in favor of those
* Of the Eighth Circuit, sitting by designation.
da
Gael oe received letters of notice of demotion on
une 17, 1977, or thereafter is affirmed, etc.
By the Court:
/s/ Dana H. Gallup,
Dana H. GaALiur,
Clerk.
By:/s/ Francis P. Scigliano
Francis P. SCIGLIANO
Chief Deputy Clerk.
5a
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 81-1567
81-1607
JuAN Fumero Soto, Er At.,
Plaintiffs-Appellees-C ross-Appellants,
Vv.
Car._os Cuarvon, Erc., Et AL.,
Defendants-Appellants Cross-Appellees.
By Corvin, Chief Judge,
Gisson,* Senior Circuit Judge,
Bowes, Circuit Judge.
ORDER OF COURT
Entered July 6, 1982
The petition for rehearing by defendants-appellants and
cross-appellees is denied for the following reasons. The district
court found in ruling on defendants’ motion for summary judg-
ment as to Ortiz Rivera:
The present type of cause of action accrues on the date
Plaintiff is officially informed that he is being demoted and
weg Rey hc fag Med are It is at this
re is present a “complete present cause
of action.” Rawlings v. Ray, 314 U.S. 96, 98 (1948). In the
present case this occurred on June 21, 1977. Therefore, a
complaint filed on June 19, 1978 would be timely.
Joint Appendix at 73.
In arriving at this conclusion, the court considered plaintiff's
sworn statement to the effect that he was orally informed on
* Of the Eighth Circuit, sitting by designation.
6a
May 27, 1977, that he was going to be removed from his
position as school director and assigned to his permanent posi-
tion of teacher. The court specifically found:
First from the informal and unofficial information Plaintiff
received in May, 1977 one could not conclude that Plaintiff
lost all reasonable expectations that he would continue at
his position. Second, and along the same lines from the
informal conversation one cannot conclude that Plaintiff
was in fact demoted or reassigned. Until he was informed
ye Plaintiff had no reason to believe that he was
Id. at 72.
We do not think the district court erred in making this
finding. In the case cited by defendants, McWilliams vy.
Escambia County School Board, 658 F .2d 326 (5th Cir. 1981),
the district court found that the plaintiff reasonably knew prior
to the critical date that his position was being changed. The
court of appeals found that “the record contains ample evi-
dence to support the district court's ruling.” /d. at 328. This is
the obverse of the fact situation in McWilliams but the same
rationale applies.
We rule that, as with all the other plaintiffs, the statute of
limitations started to run as to Ortiz Rivera on the day he
received the official letter of demotion, which was on June 21,
1977. The class action was, therefore, timely filed.
The second argument in the petition, that American Pipe
should control, was discussed thoroughly in defendants-
appellants’ brief and in our opinion. No new reasons have been
advanced that persuade us we should change the opinion in this
regard.
By the Court:
/s/ Dana H. Gallup,
Dana H. GALLUP,
Clerk.
By:/s/ Francis P. Scigliano
FRANCIS P. ScIGLIANO
Chief Deputy Clerk.
7a
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Nos. 80-1237, et al.
RAFAEL Rivera FERNANDEZ, Et AL.,
Plaintiffs-Appellants,
v.
Carios Cuarpon, Erc., Et AL.,
Defendants-Appellees.
On Remand From The Supreme Court
Of The United States
Before
Camrse.s, Bownes, and Breyer,
Circuit Judges.
Nos. 81-1567
81-1607
Juan Fumeno Soro, Et At.,
Plaintiffs-Appellees-C ross-Appellants,
Vv.
Car.os Cuarvon, Erc., Et AL.,
Defendants-Appellants-C ross-Appellees.
Appeals From The United States District Court
For The District Of Puerto Rico
(Hon. Rowent A. Guant,* U.S. District Judge|\
* Of the Northern District of Indiana, sitting by designation.
Sa
Before
Corvin, Chief Judge,
Ginson,** Senior Circuit Judge,
Bownes, Circuit Judge.
Sheldon H. Nahmod, Hiram R. Cancio, Harry R. Nadal-
Arcelay, Jaime R. Nadal-Arcelay, Jesus R. Rabell-Mendez,
and Cancio Nadal & Rivera on brief for appellants.
K. Martin Worthy, John G. DeGooyer, Stephen L. Hum-
phrey, Hamel, Park, McCabe & Saunders, Hector Reichard
De Cardona, Secretary of Justice, and Ines Equia De Casano-
va, Attorney, Department of Justice of Puerto Rico, on brief
for appellees.
June 8, 1982
Bownes, Circuit Judge. Before us in the instant action are
two groups vi consolidated cases that represent fifty-five and
thirty-six cases, respectively. All ninety-one cases are actions
based on 42 U.S.C. § 1983 charging illegal acts of political
discrimination. The first group of consolidated cases, F umero
Soto v. Chardon, is an appeal from a jury verdict that defend-
ants are liable to plaintiffs in the fifty-five cases and from the
relief ordered by the court in its equitable power. The second
group of consolidated cases, Rivera Fernandez v. Chardon, is
on remand from the Supreme Court, which, in Chardon v.
Rivera Fernandez, 50 U.S.L.W. 3341 (Nov. 2, 1981), reversed
our decision on the statute of limitations issue in these cases,
** Of the Eighth Circuit, sitting by designation.
Yaa
Rivera Fernandez vy. Chardon, 648 F.2d 765 (ist Cir. 1981).'
The Rivera Fernandez cases had been dismissed by the district
court and were not tried on the merits. We deal with these two
sets of cases together because they both present questions
concerning the tolling of the statute of limitations that are not
foreclosed by the prior decisions in Rivera Fernandez. In
addition, the defendants in Fumero Soto argue that the jury
verdict was not supported by the evidence and that the dam-
ages award against the Puerto Rico Department of Education
violated the eleventh amendment; plaintiffs in Fumero Soto
contend that the individual defendants enjoy no immunity.
The Facts and Case Histories
All the Fumero Soto and Rivera Fernandez cases arose out
of essentially the same facts. The plaintiffs in all cases held
nontenured administrative positions in the Commonwealth of
Puerto Rico Department of Education during the school year
1976-77. The defendants are Carlos Chardon, then Secretary
of Education for the Commonwealth, Oscar Ramos, then and
now Assistant Secretary for Personnel in the same depart-
ment, and Maria Socorro Lacot, now the Secretary of Educa-
tion, who was substituted for Chardon in his official capacity.
Chardon and Ramos were originally sued in both their official
and individual capacities. The events leading up to the instant
actions began in January, 1977, when Carlos Romero Barcelo
of the New Progressive Party (NPP) replaced Rafael Hernan-
dez Colon of the Popular Democratic Party (PDP) as governor.
Chardon and Ramos, members of the NPP, soon assumed
positions in the Department of Education under the new reg-
ime. Chardon and Ramos, according to plaintiffs’ complaints,
then determined to remove nonpermanent administrative per-
sonnel who were active in the PDP or parties other than the
NPP.
' Our decision in Rivera Fernandez dealt with only twenty-three of
the cases; we disposed of the other thirteen cases with separate but
identical judgments. Chardon v. Rivera Fernandez, O U.S.L.W.
3341, 3341 n.1 (Nov, 2, 1981),
10a
All the plaintiffs received letters—most of them in May and
June 1977—from Julio Cintron Lopez, Director of the Teaching
Personnel Division, informing them that they would not be
reappointed to the administrative positions they currently
held for the school year 1977-78 and that they would instead be
required to return to the lower-paying, tenured teaching posi-
tons that they had held before. Three of the Rivera Fernandez
plaintiffs had not previously held tenured teaching posts, so
they were discharged. Most, if not all, of the plaintiffs sent
letters of protest to Chardon, objecting to their demotion or
termination and informing him that they were referring the
matter to the Teachers Association of Puerto Rico for appro-
priate legal action.*
On June 19, 1978, one demoted employee, Jose Ortiz Rivera,
filed a class action against Chardon and Ramos in their individ-
ual and official capacities on behalf of all persons discharged or
demoted by Chardon and Ramos for political reasons, claiming
a violation of first and fourteenth amendment rights protected
by 42 U.S.C. § 1983" and P.R. Laws Ann. tit. 18, §§ 214, 249a,
* The letters were all virtually identical, the texts of which read in
substance as follows:
Dear Mr. Secretary:
I have received a letter from the Department you ‘lirect dated
{date}, signed by Mr. Julie Cintron Lopez, Director of the Teach-
ing Personnel Division. ' «m not in agreement with your deci-
To that effect, | have sent a copy of the letter to the Teachers
Association of Puerto Rico, so that said organization would
instruct its Legal Division to take the corresponding action.
In the meanwhile, | will obey the order issued by you.
Sincerely,
*42 U.S.C. § 1983 provides in relevant part as follows:
lla
249e.* Class certification was denied on August 21, 1978, be-
cause the class was not so numerous that joinder was imprac-
ticable. Fed. R.Civ.P. 23(a)(1). Plaintiffs then filed complaints
*P.R. Laws Ann. tit. 18, § 214 provides as follows:
category
. The equivalence of the two (2) years of probationary
period shall comprise the work performed with a substitute or
probationary contract during two (2) consecutive years. Such
on an er cee ionary or
permanent teachers in the municipality where they may be
teaching when entitled to a regular position.
P.R. Laws Ann. tit. 18, § 249a provides as follows:
For the of sections 249a-249¢e of this title, all public-
school of Puerto Rico shall be considered as officers or
service, irrespective of the form and manner in which they
may render their services to the people of Puerto Rico. By
public-school teachers shall be understood, for the of
fnchades both the teachers in ek A. - wy — . which
includes ere t teaching ——
connected with work, and
cob cbeiedaeitiing cliahe toute pees espasnciettey te
contracted as such by other departments or agencies of the
Commonwealth of Puerto Rico.
12a
individually in January, 1979, the earliest filings occurring on
January 10. The individual complaints repeated the claims of
Ortiz Rivera's class suit.
The history of the Rivera Fernandez cases is as follows. The
district court dismissed the cases on the ground that they were
barred by Puerto Rico's one-year statute of limitations. E.g.,
Aviles Navarro v. Chardon, 506 F. Supp. 229 (D.P.R. 1980).
We reversed, holding that the letter notifications did not trig-
ger the statute, but that the actual demotions and discharges
did and that suit was filed within one year of these events.
Rivera Fernandez v. Chardon, 648 F.2d 765 (1st Cir. 1981).
The Supreme Court reversed, finding that Delaware State
College v. Ricks, 449 U.S. 250 (1980), controlled and that the
letter notifications started the statute running. Chardon v.
Rivera Fernandez, 50 U.S.L.W. 3341 (Nov. 2, 1981).
Meanwhile, decision was reserved on the statute of limita-
tions question in the remaining fifty-five cases (F' «mero Soto).
These cases were consolidated for trial, and the trial was
bifurcated into liability and damages phases. After a five-day
trial of the liability issues, a six-person jury returned unami-
mous verdicts in favor of the plaintiffs. The jury was also asked
to answer special interrogatories, whether Chardon or Ramos
acted with malicious intent to deprive plaintiffs of their con-
stitutional or other rights. The jury answered these questions
in the negative. The district court then asserted its equitable
power to declare a remedy and ordered the Department of
Education to reinstate those plaintiffs still in its employ to the
P.R. Laws Ann. tit. 18, § 249e provides as follows:
13a
positions they had held before their demotions and to give
them back pay reflecting the difference in salary bet ween their
former positions and the positions to which they were de-
moted. Plaintiffs who had \eft the Department were held not
entitled to reinstatement and were to receive back pay only for
the period from the time of demotion to the time they left. On
the basis of the jury’s findings of no malicious intent, the court
refused to award damages against Chardon and Ramos in their
individual capacities or to award punitive damages. Defend-
ants appealed; on August 14, 1981, we stayed that portion of
the order requiring back pay because of “significant questions”
as to its validity.
The Issues
The general issue is whether claims by any or all of the
Riveva Fernandez and F umero Soto plaintiffs were barred by
the statute of limitations.’ Before discussing the separate
arguments raised, it is useful to mark a few recognized princi-
ples. In the absence of a federal statute of limitations, the
analogous state statute is applied to the federal cause of action.
E..g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454,
462 (1975); O'Sullivan v. Felix, 233 U.S. 318, 322 (1914). In
Puerto Rico, the limitations period applicable to a § 1983 claim
alleging violation of first amendment rights is one year. P.R.
Laws Ann. tit. 31, § 5298(2); Graffals Gonzalez v. Garcia
Santiago, 550 F.2d 687, 688 (1st Cir. 1977) (per curiam). At
least as a matter of federal law, the filing of a class action will
toll the statute of limitations for named and unnamed members
of the class, and the statute will resume running when class
certification is denied. American Pipe & Constr. Co. v. Utah,
414 U.S. 538, 561 (1974).
° We take it that statute of limitations defenses were preserved in
all cases. Defendants state that they raised the affirmative defense in
timely fashion. and there is no contrary evidence. Nor do we believe
that the defense was subsequently waived in any case, although the
record on which plaintiffs rely for this argument is lamentably un-
clear.
l4a
Under American Pipe, the one-year statute of limitations
would have been tolled on June 19, 1978, when Ortiz Rivera
filed his class action. The tolling would have ended, and the
remaining portion of the limitations period would have recom-
menced running on August 21, 1978, when the district court
declined to certify the class. Over half of the plaintiffs in both
sets of cases had received notice of demotion more than one
year before Ortiz Rivera filed suit, so their claims would
already have been time-barred. The remaining plaintiffs would
have had from one to one hundred and thirty-eight days to file
individual complaints after August 21, 1978. The earliest indi-
vidual complaints were not filed, however, until January 10,
1979, after expiration of the remaining one hundred and thirty-
eight day period.
Plaintiffs mount three attacks on the statute of limitations:
that Ricks should not be applied retroactively; that the letters
of protest tolled the statute of limitations;* and that the denial
of class action certification in Ortiz Rivera’s suit did not merely
reactivate the statute of limitations, the American Pipe rule,
but instead caused it to run anew. It is important to determine
at the outset the relationships between these three conten-
tions. The critical dates must be kept in mind: May-June 1977,
notification by letters; August 31, 1977, plaintiffs vacate their
positions; June 19, 1978, class action filed; August 21, 1978,
class action dismissed; and January 10, 1979, first individual
complaint filed.
The first claim, nonretroactivity, is insufficient alone to save
all but a few of the suits because it would merely move the
accrual date from the dates demotion letters were received to
the date plaintiffs had to leave their positions, August 31, 1977.
The class suit was filed nine months, nineteen days after that,
so that, under the American Pipe rule, when class certification
was denied on August 21, 1978, only two months, eleven days
* Plaintiffs also argue in the alternative that this issue should be
certified to the Supreme Court of Puerto Rico.
15a
would have remained for all plaintiffs to file complaints. The
period thus would have expired on November 1, 1978, before
which time no individual complaints had been filed.
The second position, that the letters of protest sent by
plaintiffs were sufficient under Puerto Rican Law to toll the
statute of limitations so that it commenced running anew, is
also inadequate alone in all but a few cases. This would save the
otherwise time-barred claims of those who received notice of
demotion prior to June 19, 1977, but who did not write a protest
letter until after that date. The filing of the class action would
then have been timely as to them. After certification was
denied on August 21, 1978, they would have had whatever time
had not expired from the one-year period in which to sue
individually. The unexpired time would be insufficient in most
cases, however, to carry over into January.
The third contention, that denial of class certification on
August 21, 1978, starts the one-year statute running from
scratch, by itseif would save claims that were based on notices
of termination received within a year prior to filing of the class
action, June 19, 1978. This rule alone would not help any of the
Rivera Fernandez plaintiffs, all of whom received discharge
notifications before June 19, 1977. In combination with the
nonretroactivity contention, this would save all Rivera Fer-
nandez and Fumero Soto claims because they would not accrue
until August 31, 1977. In combination with the letter tolling
contention, the third argument would save those additional
claims in which notice was received before June 19, 1977, but a
letter of protest was sent after that date.
The Tolling Effect of the Class Action
The linchpin of plaintiffs’ contentions, therefore, is that,
under Puerto Rican law, a class action will cause the statute of
limitations to begin running anew. Puerto Rican tolling rules,
rather than the federal rule of American Pipe in which the
running of the limitations period is merely suspended, apply,
unless they are inconsistent with federal law. Board of Regents
l6a
v. Tomanio, 446 U.S. 478, 483-86 (1980). Under P.R. Laws
Ann. tit. 31, § 5303, the limitations period against an action
ceases to run when the action is instituted in court; if the action
is discontinued, the case law has held that the limitations
period begins to run anew from that time. E..g., Feliciano v.
Puerto Rico Aqueduct & Sewer Auth., 93 P.R.R. 638, 644
(1966); Heirs of Gorbea v. Portilla, 46 P.R.R. 279 (1934); De
Jesus v. De Jesus, 37 P.R.R. 143 (1927). See also Hernandez
del Valle v. Santa Aponte, 440 F. Supp. 254 (D.P_R. 1977),
rev'd on other grounds, 575 F .2d 321 (1st Cir. 1978); Bedard v.
Consolidated Mutual Insurance Co., 313 F. Supp. 1021, 1021-
22 (D.P.R. 1970). This tolling is effective only with regard to
identical causes of action; the filing of one action does not toll
the statute of limitations for all claims arising out of the same
facts. Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d
315, 319-20 (1st Cir. 1978). The substantive claims asserted in
Ortiz Rivera’s class action complaint were identical to those
alleged in the subsequent individual complaints. The question
here is whether a class action is different from an individual
complaint—at least as to unnamed plaintiffs in the class
action—for purposes of the identical claim rule. The Puerto
Rico Supreme Court has not ruled on this question. The ob-
vious analogy is to the federal rule of Aimerican Pipe, wherein
the running of the statute of limitations was suspended as to
both named and unnamed class members. Defendants argue,
however, that American Pipe cannot be used here because
plaintiffs have resisted that part of the American Pipe rule
that provides for suspension and have instead insisted that the
statute of limitations run anew.
To the extent that defendants make an estoppel argument,
we reject it, but the substance of their argument bears further
consideration. Application of state tolling rules to § 1983 claims
is required by 42 U.S.C. § 1988, Board of Regents v. Tomanio,
446 U.S. at 484-85; Robertson v. Wegmann, 436 U.S. 584, 588
(1978), unless the state rules are inconsistent with the federal
policy underlying § 1983, Board of Regents v. Tomanio, 446
U.S. at 485-86; see Johnson v. Railway Express Agency, Inc.,
17a
421 U.S. 454, 465 (1975) (same as to § 1981 claims). Thus in a
§ 1983 case, the federal rule and underlying reasoning of
American Pipe are not generally applicable. Johnson v. Rail-
way Express Agency, Inc., 421 U.S. at 466-67. But see Morton
v. Charles County Bd. of Educ., 373 F. Supp. 394, 396 (D. Md.
1974), affd on other grounds, 520 F.2d 871 (4th Cir.), cert.
denied, 423 U.S. 1034 (1975) (under American Pipe, § 1983
class action tolled limitations period for all class members). In
the instant case, though, there is no discernible state rule.
Moreover, Puerto Rico has modeled its class action procedure,
P.R. Laws Ann. tit. 32, App. II, R. 20.1, on the federal class
action procedure. Caguas Lumber Yard, Inc. v. Superior
Court, 96 P.R.R. 826, 830 (1969). Because the decision in
American Pipe that unnamed class members could take advan-
tage of the tolling effect of a pending class action was based on
an interpretation of the federal class action rule, Fed.R.Civ.P.
23(a), American Pipe & Constr. Co. v. Utah, 414 U.S. at
550-52, we believe that this reasoning would also be applied in
determining the relationship between class actions and tolling
rules in Puerto Rico. We conclude that named and unnamed
plaintiffs may benefit from the tolling effect of a class action, if
class certification is later denied on grounds of lack of numeros-
ity. Cf. id. at 552-53.
This conclusion answers only half of the question. The issue
remains whether American Pipe or other reasons require that
unnamed class members gain the benefit only of suspension of
the running of the limitations period, notwithstanding the
Puerto Rican rule that the statute starts to run anew under
similar circumstances. In American Pipe, the pendency of the
class action suspended the running of the limitations period
because the statute providing the underlying cause of action,
section 5(b) of the Clayton Act, provided for suspension where
the government filed suit under the statute. American Pipe &
Constr. Co. v. Utah, 414 U.S. at 560-61. In this case, neither
§ 1983 nor any of the related Civil Rights Acts provisions
suggest the precise effect that commencement of a class action
or any other action should have. It is true that “in the American
18a
common law generally, prior judicial actions do not toll the
statute of limitations, no matter how close their relationship to
the one at bar.” Ramirez de Arellano v. Alvarez de Choudens,
575 F.2d at 319 (citations omitted). Puerto Rico has not
adopted the American common law, however, and we see no
reason not to apply its running-anew rule to unnamed plain-
tiffs. None of the parties has pressed on us an argument that
the federal policies underlying § 1983 require a particular re-
sult here, see Board of Regents v. Tomanio, 446 U.S. at 485-86,
and we can discern no particularly strong policies implicated.
Two policies often associated with § 1983 and tolling rules are
those of repose and federalism. See Williams v. Walsh, 558
F.2d 667, 674-75 (2d Cir. 1977). In this case, the class action—
assuming that it itself was timely filed, a matter we discuss
below—did not disturb any protected repose defendants en-
joyed with respect to § 1983 claims, and commencement of a
new limitations period after the pendency of the class action
would not interrupt any further repose. In addition, defend-
ants are Puerto Rican, and there is no unfair surprise in follow-
ing Puerto Rican law. The policy of federalism also appears to
be well served: Puerto Rican law is permitted its fullest effect
without any visibly adverse impact on federal rights. We hold,
therefore, that a class action asserting a § 1983 claim tolls the
Puerto Rican statute of limitations during the pendency of the
class action for all purported class members and that when
class certification is denied for lack of numerosity, the limita-
tions period begins to run anew.
The Retroactivity of Delaware State College v. Ricks
We now turn to the two remaining arguments on tolling,
keeping in mind that the one-year statute of limitations was
tolled by the filing of the class action on June 19, 1978, and
started running anew when the class certification was denied
on August 21, 1978. Success on the contention that the Su-
preme Court’s decision in Delaware State College v. Ricks, 449
U.S. 250, should not be applied retroactively would save all
suits, so we now examine that. Defendants in Fumero Soto
argue that the decision in Chardon v. Rivera Fernandez, 50
19a
U.S.L.W. 3341, controls this issue and requires retroactivity
because the facts in that group of cases involved the same
alleged incidents of political discrimination as the Fumero Soto
cases do. Nothing is said in the Rivera Fernandez opinion
regarding retroactivity.’ We do not think that the retroactivity
question is therefore forclosed.
The application of nonretroactivity depends on an evaluation
of
three separate factors. First, the decision to be applied
nonretroactively must establish a new principle of law,
either by overruling clear past precedent on which liti-
ts may have relied, see, e.g., Hanover Shoe, Inc. v.
nited Shoe Machinery Corp., (392 U.S. 481,] 496, or by
deciding an issue of first impression whose resolution was
not clearly foreshadowed, see, eg.» Allen v. State Board
of Elections, (939 U.S. 544,] 572. Second, it has been
stressed that “we must. . . weigh the merits and demerits
in each case by looking to the prior history of the rule in
question, its pumas and effect, and whether retrospec-
tive operation will further or retard its operation.” Link-
letter v. Walker, [381 U.S. 618,] 629. Finally, we have
weighed the inequity imposed by retroactive application,
for “[wJhere a decision of this Court could produce sub-
stantial inequitable results if applied retroactively, there
is —- basis in our cases for avoiding the ‘injustice or
hardship’ by a holding of nonretroactivity.” Cipriano v.
City of Houma, (395 U.S. 701,] 706.
7In further asserting the conclusive effect of Rivera Fernandez,
defendants argue that the Supreme Court denied the Rivera Fernan-
dez plaintiffs’ petition for rehearing, which raised the nonretro-
activity issue. Defendants’ argument is utterly without merit be-
cause surely the denial of a petition for rehearing can have no greater
precedential effect than the denial of a petition for certiorari, which is
to say none. See Maryland v. Baltimore Radio Show, Inc., 338 U.S.
912, 919 (1950) (opinion of Frankfurter, J., respecting denial of peti-
tion for writ of certiorari).
20a
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971). See
Aufiero v. Clarke, 639 F.2d 49, 51 (1st Cir.), cert. denied, 452
U.S. 917 (1981). In analyzing Chevron Oil's first factor, plain-
tiffs direct us to several cases purportedly standing for the
proposition that a § 1983 cause of action accrues when plaintiff
is actually demoted or terminated. The weight of authority is
far less than plaintiffs suggest. One of the cases cited stands
essentially for the Ricks rule of accrual rather than for plain-
tiffs’ asserted rule, NLRB v. California School of Professional
Psychology, 583 F.2d 1099, 1101-02 (9th Cir. 1978) (applying
§ 10(b) of National Labor Relations Act); accord, Nazareth
Regional High School v. NLRB, 549 F.2d 873, 882 (2d Cir.
1977), three cited cases stand equally well for the Ricks rule as
for plaintiffs’ rule, Morelock v. NCR Corp., 586 F.2d 1096,
1103 (6th Cir. 1978), cert. denied, 441 U.S. 906 (1979) (Age
Discrimination in Employment Act); Payne v. Crane Co., 560
F.2d 198, 199 (5th Cir. 1977) (per curiam) (same Act); Fitz-
gerald v. Seamans, 553 F.2d 220, 226-31 (D.C. Cir. 1977) (42
U.S.C. § 1985(3)), two are at best suggestive of plaintiffs’
proposition, as we observed in Rivera Fernandez v. Chardon,
648 F.2d at 768, Bonham v. Dresser Industries, Inc., 569 F.2d
187, 192 (3d Cir. 1977), cert. denied, 439 U.S. 821 (1978) (Age
Discrimination in Employment Act); Moses v. Falstaff Brew-
ing Corp., 525 F.2d 92, 95 (8th Cir. 1975) (same Act), and only
one offers square support for plaintiffs’ rule, Egelston v. State
Univ. College at Geneseo, 535 F.2d 752, 755 (2d Cir. 1976)
(Title VII). Moreever, despite the Second Circuit's decision in
Egelston, the Fourth Circuit reached a contrary conclusion in
December, 1977, Bireline v. Seagondollar, 567 F.2d 260, 263
(4th Cir. 1977), cert. denied, 444 U.S. 842 (1979). It is true that,
as of the summer of 1977, little law existed regarding the
accrual date of a § 1983 cause of action, but the one established
principle was that a civil rights cause of action accrued when
plaintiff knew or had reason to know of his or her injury, see,
e.g., Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975); 1 C.
Antieau, Federal Civil tights Acts § 241, at 412 (2d ed. 1980),
2la
which could support either the Ricks rule or plaintiffs’ rule.*
We cannot say that Ricks established a new principle of law,
either by overruling clear past precedent or by deciding an
issue of first impression. Chevron Oil Co. v. Huson, 404 U.S.
at 106.
The second factor bearing on nonretroactivity involves ex-
amining “ ‘the prior history of the rule in question, its purpose
and effect, and whether retrospective operation will further or
retard its operation.’ ” Chevron Oil Co. v. Huson, 404 U.S. at
107, quoting Linkletter v. Walker, 381 U.S. 618, 629 (1965).
Linkletter restated the inquiry as one into the purpose of the
new rule, reliance placed on the old rule, and the effect of
retroactivity on the administration of justice, Linkletter v.
Walker, 381 U.S. at 636. The inquiry has also been construed
more simply as the last clause of the Chevron Oil factor:
whether retroactive application will further or retard opera-
tion of the rule, Wiltshire v. Standard Oil Co., 652 F.2d 837,
841 (9th Cir. 1981), cert. denied, 50 U.S.L.W. 3766 (Mar. 22,
1982). However stated, this test for the retroactivity of a rule
of law requires an explanation of the purposes of the new rule
and consideration of its impact on the prior law, which thereby
make this test dependent on the first factor: the less (or the less
clear) prior law, the less adverse impact there would be, and
this would militate against retroactivity. The accrual rule of
Ricks seems to promote more strongly the policy of repose that
underlies the applicable state statute of limitations. The policy
of repose is that a defendant can be expected to defend a suit
* This observation relates to the question whether in a retro-
activity analysis, we should focus on the state of the law at the time
the claim arose, Wachovia Bank & Trust Co. v. National Student
Marketing Corp., 650 F.2d 342, 347 (D.C. Cir. 1980), cert. denied,
452 U.S. 954 (1981), or on the state of the law when the new decision
comes out. We intimate no views on whether we agree with Wacho-
via Bank. That opinion would provide a stricter test for retroactivity
here; we think that under Wachovia the “new” law was clear at the
time plaintiffs’ claims arose.
22a
only for a certain period after the act complained of. The period
of susceptibility to suit should begin when the defendant is first
aware (or should be aware) of facts that give rise to the con-
crete possibility of suit. A competing policy is that a limitations
period should not begin to run against a plaintiff until he is or
should be aware of the actionable conduct. Under Ricks these
policies are reconciled as follows: the crux of a § 1983 action is a
discriminatory act, and in an employment case, this act
occurs—and the limitations period begins to run—when notice
of termination or demotion is given, not when the firing or
demotion actually takes effect. Retroactive application of
Ricks would give greater protection to defendants’ repose
without unduly limiting plaintiffs’ ability to sue. Moreover,
given the at best unsettled state of the law on accrual before
Ricks, retroactive application would not disrupt expectations
of either party. There would also seem to be little impact on the
administration of justice whether or not Ricks is applied
retroactively. The second test of Chevron Oil thus does not
require nonretroactivity.
We might still find retroactivity barred if it would produce
substantially inequitable results, the third Chevron Oil factor.
This factor reflects concern that a plaintiff not be accused of
“sleeping on his rights” when he could not have known of
restrictions on his rights, Chevron Oil Co. v. Huson, 404 U.S.
at 108, and that injustice or hardship not be caused, Cipriano
v. City of Houma, 395 U.S. 701, 706 (1969) (per curiam). The
equities that the Fumero Soto plaintiffs rely on are their day in
court to vindicate their right to freedom from political dis-
crimination, the existing jury finding of liability on the part of
the defendants, and the expenses already incurred at trial.
Neither group of plaintiffs advance any reason, however, as to
why they waited so long before filing suit, thereby risking a
time bar if the date of notice of demotion were to become the
accrual date. The then-existing law was not at all clear on this
point. The right plaintiffs seek to enforce is not so important
that limitations periods should be disregarded. The ex-
penditure of time and energy in the Fumero Soto case is
23a
regrettable, but the limitations problem had been recognized
before the case was tried on its merits. We are unpersuaded
that equity requires Ricks to be applied prospectively only,
and we hold that Ricks applies retroactively.
The Tolling Effect of the Letters of Protest
We now turn to the argument that letters sent by the plain-
tiffs in both cases to Chardon and the Department of Education
protesting their demotions constituted “extrajudicial claim[s]
of the creditor[s}” within the meaning of P.R. Laws Ann. tit.
31, § 5303, which thereby tolled the limitations period and
caused it to run anew. We have held that such extrajudicial
claims must be “precise and specific” in order to have this
desired tolling effect. Gual Morales v. Hernandez Vega, 604
F.2d 730, 733 (1st Cir. 1979), citing Jimenez v. District Court,
65 P.R.R. 35, 42 (1945). A proper extrajudicial claim must seek
the same relief ultimately sought in the subsequent lawsuit.
Hernandez del Valle v. Santa Aponte, 575 F.2d 321, 323-24
(1st Cir. 1978). Plaintiffs believe that their protest letters
satisfied these conditions. If they do not, however, they urge
us to reconsider Gua! Morales and Hernandez del Valle for the
following three reasons: the Supreme Court’s recent decision
in Board of Regents v. Tomanio, 446 U.S. 478, requires
modification of our decisions; Puerto Rican law treats “ex-
trajudicial claim” more liberally than do our decisions; and
Hernandez del Valle erroneously used federal law in constru-
ing “extrajudicial c.uim” restrictively. Alternatively, they re-
quest that we certifiy to the Puerto Rico Supreme Court the
question of the tolling effect of the protest letters.
The Rivera Fernandez and Fumero Soto plaintiffs sent
virtually identical letters of protest to Chardon in which each
plaintiff acknowledged receipt of his demotion letter, stated
his disagreement with the decision, informed Chardon that he
had sent a copy of the demotion letter to the Puerto Rico
Teachers Association to take appropriate action, and said he
would obey the order." These letters did not make a “precise
*See footnote 2 for the verbatim text of the letters.
24a
and specific” claim for the relief ultimately sought. The plain-
tiffs later sought reinstatement, back pay, actual and punitive
damages, costs and attorney’s fees, and a permanent injunc-
tion against defendants from any further acts of political dis-
crimination. None of these claims were asserted in the letters;
the letters allude only to necessary legal action. This warning
does not serve the purpose of a “precise and specific” claim,
alerting defendants to still-live claims that would otherwise
lapse. These letters are in the nature of a mere reminder, not a
claim, see Diaz de Diana v. A.J.A.S. Ins. Co., P.R.R.
—. (1980), and do not come within § 5303.”
We also decline the invitation to reconsider Gual Morales
and Hernandez del Valle. The three reasons advanced for
reconsideration tend to merge. The first reason, the Tomanio
case, which held that state tolling law applies to the state
statute-of-limitations questions that arise in a § 1983 case, is
said to require reconsideration because our earlier decisions
incorrectly interpreted Puerto Rican law—the second reason
for reconsideration—and because those decisions improperly
took federal law into account—the third reason. We cannot and
do not, of course, dispute Tomanio, but we do not believe that
Gual Morales and Hernandez del Valle violated its guidelines.
Puerto Rican law does not, contrary to the plaintiffs’ asser-
tions, require a wider construction of “extrajudicial claim.”
Our decision in Hernandez de! Valle relied on two Common-
wealth Supreme Court cases and one federal district court case
from Puerto Rico. Hernandez del Valle v. Santa Aponte, 575
F.2d at 323-24. In addition, the Puerto Rico Supreme Court
recently observed that, because the “extrajudicial claim” pro-
vision of § 5303 constituted an exception to the extinguishment
of actions, it should be construed narrowly. Diaz de Diana v.
A.J.A.S. Ins. Co., __. P.R.R. at ___ & n.1. The commenta-
* We have no occasion to consider defendant Ramus’ contention
that, because the letters were sent to Chardon at the Department of
Education, Ramos never received them so that they could not in any
event constitute extrajudicial claims as to him.
25a
tors cited by plaintiffs, Diez-Picazo, La Prescripcion En El
Codigo Civil 93-95, 130-31; 12 Manresa, Codigo Civil 1242-43
(1973), do not appear to urge a different interpretation. Diez-
Picazo does state (in translation) that no particular form is
required for an extrajudicial claim but goes on to discuss sum-
monses, letters, and oral claims, matters of form not at issue
here. We do not think that we have construed Puerto Rican law
improperly.
Nor has federal law been read erroneously into § 5303. Plain-
tiffs object in particular to a passage in Hernandez del Valle v.
Santa Aponte, 575 F.2d at 323, that states that expansion of
“extrajudicial claim” beyond interpretations given by courts in
Puerto Rico wouid undermine the policy of repose underlying
statutes of limitation. Plaintiffs’ argument is essentially that
“policy of repose” is a common law concept that cannot be used
in construing the civil code. The commentary concerning toll-
ing that is cited by plaintiffs, Diez-Picazo, supra, and Manresa,
supra, is certainly not inconsistent with the policy of repose,
but in any case, it is clear that our decisions in Hernandez del
Valle and Gual Morales rested primarily on a fair reading of
Puerto Rican decisions. Gual Morales v. Hernandez Vega, 604
F.2d at 733; Hernandez del Valle v. Santa Aponte, 575 F.2d at
223-24. Plaintiffs also refer us to Miller v. Smith, 625 F.2d 43
(5th Cir. 1980) (per curiam), and Brown v. Bigger, 622 F.2d
1025 (10th Cir. 1980) (per curiam), for support for their position
here. Miller simply reversed and remanded for reconsidera-
tion in light of Tomanio, a decision with which we already
conform; Brown v. Bigger is to similar effect and does not
persuade us to alter our conclusion.
The plaintiffs ask us alternatively to certify to the Puerto
Rico Supreme Court the question of the tolling effect of the
protest letters. Certification is a matter within the discretion
of the court. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
It is particularly appropriate where a novel and unsettled
question of state law is involved, and where the judges on the
federal bench are geographically distant from that state or are
otherwise unfamiliar with its law. See id. at 391; Gual Morales
26a
v. Hernandez Vega, 604 F.2d at 732-33; Ruiz Rodriguez v.
Litton Industries Leasing Corp., 574 F.2d 44, 46 (Ist Cir.
1978). Among other functions, certification is meant to save
“time, energy, and resources and helps build a cooperative
judicial federalism.” Lehman Bros. v. Schein, 416 U.S. at 391.
The cases at bar do not involve a matter of first impression in
Puerto Rican law, cf. Hendrickson v. Sears, 495 F.2d 513, 514
(1st Cir. 1974) (per curiam) (certification of “question of first
impression in Massachusetts law”); Bose Corp. v. Consumers
Union, Inc., 384 F. Supp. 600, 603 (D. Mass. 1974) (same), nor
an issue where the law is unsettled, cf. Hiram Ricker & Sons v.
Students Internat'l Meditation Soc’y, 501 F.2d 550, 557-58
n.16 (lst Cir. 1974) (certification where extension of prior
Maine decisions was uncertain). The principle that an “extra-
judicial claim” must be “precise and specific,” Jiminez v. Dis-
trict Court, 65 P.R.R. at 42, that it must seek the same relief
later sought in court, Gual Morales v. Hernandez Vega, 604
F.2d at 732-33; Hernandez del Valle v. Santa Aponte, 575 F.2d
at 323-24, has already been clearly laid down. We decline,
therefore, to certify the issue to the Puerto Rico Supreme
Court. See Daigle v. Hall, 564 F.2d 884, 886 (1st Cir. 1977)
(“not particularly difficult” issue of state law does not require
certification); Oppenheimer Mendez v. Acevedo, 512 F.2d
1373, 1375 (ist Cir. 1975) (where Puerto Rico law is clear,
certification would be “hollow formality”). In every case,
certification would help “build a cooperative judicial federal-
ism,” Lehman Bros. v. Schein, 416 U.S. at 391, by deferring to
state courts, but the waste of time and energy in certifying the
issue of “extrajudicial claim” here would be too great, see id.
Our ruling that the Ortiz Rivera class action tolled the stat-
ute of liraitations during its pendency and caused it to run anew
means that those F wmero Soto plaintiffs who received notice of
termination within one year before the class action was filed,
that is, after June 19, 1977, are not time-barred. The date of
notice of termination is the triggering date under Ricks and
Rivera Fernandez, not the protest letters. The Fumero Soto
plaintiffs who received notice of termination before June 19,
27a
1977, are time-barred. All the Rivera Fernandez plaintiffs
received notice prior to June 19, 1977, and all those cases are
time-barred.
The Verdict and the Subsequent Order
of the District Court
There are four issues pertaining to the Fumero Soto plain-
tiffs who are not time-barred: whether the district court should
have granted defendants’ motion for judgment notwith-
standing the verdict, Fed.R.Civ.P. 50(b); whether the general
verdict should nave been set aside because the answers to the
special interrogatories were inconsistent with it, Fed.R.
Civ.P. 49(b); whether the court erred in ordering the
Commonwealth to make payments of back pay to plaintiffs; and
whether the court erred in holding that the individual defend-
ants should not pay damages.
To determine the sufficiency of the evidence, it is necessary
first to set out the law concerning § 1983 liability. Liability may
be grounded on negligence alone. Paratt v. Taylor, 451 U.S.
527, 532-35 (1981).
Accordingly, in any § 1983 action the initial inquiry must
focus on whether the two essential elements to a § 1983
action are present: (1) whether the conduct complained of
was committed by a person acting under color of state law;
and (2) whether this conduct deprived a person of rights,
- ileges, or immunities secured by the Constitution or
ws of the United States.
Id. at 535. The first element raises several issues, among them
whether there is a sufficient causal connection between de-
fendant’s acts and the alleged injury. There is also a related,
though strictly extraneous issue, whether defendant enjoys
immunity from damages, which we discuss below concerning
the remedy in the instant cases. With respect to causality,
there usually must be an affirmative link between acts of
misconduct and plans or policies promulgated by the defend-
ant, Rizzo v. Goode, 423 U.S. 362, 371 (1976); defendant must
commit the constitutional tort himself or “cause” another to
28a
commit the tort, Monell v. Department of Social Servs., 436
U.S. 658, 692 (1978). Defendant will be liable for failures to
meet his statutory responsibilities that amount to con-
stitutional violations, DiMarzo v. Cahill, 575 F.2d 15, 17-18
(1st Cir.), cert. denied, 439 U.S. 927 (1978), and actual knowl-
edge of the resulting violations is unnecessary. /d. at 18 & n.3;
Tatum v. Houser, 642 F.2d 253, 254 (8th Cir. 1981) (per
curiam). Plaintiff may prove that defendant was derelict in
supervising a subordinate whose acts caused constitutional
injury. Such supervisory liability is ill-defined. See Naughton
v. Bevilacqua, 605 F .2d 586, 589 (1st Cir. 1979). A supericr will
not be liable for undirected, sporadic acts of subordinates,
Layne v. Vinzant, 657 F.2d 468, 471 & n.3 (1st Cir. 1981), but
he will be liable where violations are so pervasive that a dutiful
supervisor would have notice of them, Naughton v. Bevilac-
qua, 605 F.2d at 589. Mere failure to supervise is not a basis for
liability under § 1983, Owens v. Haas, 601 F.2d 1242, 1246 (2d
Cir. 1979), citing Rizzo v. Goode, 423 U.S. 362, but if delin-
quent supervision is so severe as to amount to gross negligence
or deliberate indiffernce to constitutional violations, then
liability will result, Owens v. Haas, 601 F.2d at 1246. “Section
1983 will not support a claim based on a respondeat superior
theory of liability. Monell v. Department of Social Services,
436 U.S. 658, 694 (1978).” Polk County v. Dodson, 50
U.S.L.W. 4077, 4080 (Dec. 14, 1981).
The evidence, viewed in the light most favorable to the
plaintiffs, showed the following. In early May, 1977, a memor-
andum was sent out over the signature of Virginia Belaval, an
assistant to Chardon, to undersecretaries, deputy secretaries,
and regional directors in the Department, informing them that
nonpermanent positions in the Department would be filled by
competition for the 1977-78 school year and that recommenda-
tions for retaining current nonpermanent employees should be
sent with “appropriate justifications.” Ramos and others
actually prepared the memorandum, basing it on similar
memoranda sent out at this time in earlier years. Chardon saw
the memorandum and discussed it with Belaval. Some
29a
recommendations were received. At the end of May, Ramos
ordered Julio Cintron Lopez to sign letters of demotion that
were going to “clean out” members of the PDP in temporary
positions. Cintron Lopez resisted but eventually complied;
thereafter he was excluded from activities in the Department.
At some point, probably in the summer, Chardon saw some of
the letters. The letters had the desired, cleaning-out effect: the
demoted plaintiffs were members of the PDP or unaffiliated
with the NPP; they were replaced by NPP members. In partic-
ular, one regional director told Jose Surillo Rodriguez that he
was being demoted because the NPP wanted to place its own
member in his position but that Surillo Rodriguez could seek
reappointment if he were willing to cooperate with the NPP.
When the demoted teachers returned protest letters, Belaval
heard their complaints, conducted brief investigations, and
discussed some cases with Chardon. Chardon instructed Be-
laval, however, that unless she could persuade the regional
directors to change their recommendations, their decisions
would stand. At some time during his tenure as Secretary,
Chardon spoke to a group of deputy superintendents and
school principals. He was asked about the changes and demo-
tions that had occurred in the Department, and he remarked
that the PDP had left a great many “vacuums” or vacancies and
that the NPP would take care that PDP members would not fill
them. Chardon testified that he was referring only to 300
school director positions that were truly vacant at the time."
This evidence is less than overwhelming, but we believe that
it was sufficient to enable the jury to conclude that Chardon
and Ramos had the necessary causal connection—or, as Char-
don and Ramos put it, “personal involvement”—with the
demotions to render themselves liable. Chardon is the more
” Plaintiffs argue incorrectly that evidence available to the jury
included defense counsel's “concession” that certain testimony “tied
Chardon. . . into the personal involvement pattern.” Statements of
counsel are not evidence; plaintiffs’ more egregious error is that the
jury was not in the courtroom at the time the statement was made.
30a
difficult case. He testified about his inability to control employ-
ees of the Department, and there was evidence about the
Department’s “decentralization policy:” accepting the deci-
sions of local (and otherwise inferior) officials as final. The
critical evidence was Chardon’s statement that the NPP would
keep the PDP out of Department positions; the jury was enti-
tled to credit Rivera Fernandez’s testimony over Chardon’s
about the statement. From this, the jury could have concluded
that Chardon avoided making changes in or interfering with
the Department activities that, under the prevailing policies,
he knew would operate to demote employees on the basis of
their political affiliation. See Rizzo v. Goode, 423 U.S. at 371
(need for affirmative link between misconduct and policies
implemented by defendants). This is not a case of “the mere
right to control without any control or direction having been
exercised and without any failure to supervise.” Monell v.
Department of Social Servs., 436 U.S. at 694 n.58.
The case against Ramos is stronger: he took charge of dis-
patching the demotion letters that he knew would “clean out”
PDP members. The jury could have characterized his conduct
as an act that directly caused constitutional injury to the plain-
tiffs.
We affirm the district court’s denial of defendants’ motion
for judgment notwithstanding the verdict.
The next issue, the alleged inconsistency between the
answers to the special interrogatories and the general verdict,
requires an examination of the court’s instructions to the jury.
We have no difficulty with the instructions, to which no objec-
tions were made. It is necessary, however, to restate certain
sections of the charge in order to understand the inconsistency
claim and our ruling on damages.
The district court instructed the jury that one of the essen-
tial facts plaintiffs had to prove was
that the defendant demoted him from the position that he
held during the ‘76-77 school year because of his political
affiliation and of his activity in the affairs of the Popular
3la
oe Party or the—a political party other than the
In other words, that plaintiff's political affiliation or activ-
ity in the affairs of his party was a substantial and/or
motivating factor in the defendant’s decision to deinote
him back to his permanent status. ]
On the question of immunity, the court instructed:
The Commonwealth officials who are defendants in this
case are not immune from liability for actions taken under
Section 198° if that official knew or should have known
that the action taken within his sphere of official responsi-
bility would violate the Constitutional or legal rights of the
teachers affected, or if the official took the action with the
malicious intention of causing a deprivation of Con-
stitutional or -_ rights or other injury to the teachers.
(emphasis added).
After the case was submitted to the jury, there was a leng-
thy discussion between the court and counsel as to how dam-
ages would be handled if the jury found liability. The court was
concerned because “we have got 55 cases, and it is beyond
physical endurance for that same jury to come back and try 55
damage trials.” During the discussion, the court opined “that
there must be a finding of malicious intention to justify puni-
tive damages.” Counsel ultimately agreed, with the court’s
approval, that in the event the jury found defendants liable
“that a new or second jury can be summoned to try the respec-
tive damages claims.” The record does not disclose any dis-
cussion of special interrogatories.
After the general verdict was received, the court told the
jury that it wanted it to determine “whether or not these acts
were done with a malicious intent.” It then defined malicious
intent:
Malice is the intentional doing of a wrongful act without
just cause or excuse with an intent to inflict an injury or
under circumstances that the law will imply an evil intent.
Maliciousness does not necessarily mean actual malice
or ill-will, but intentional doing of a wrongful act without
legal or social justification.
32a
The jury was then told to answer the following question as to
each defendant. “Did the defendant have a malicious intent to
deprive plaintiffs of their constitutional or other rights?” There
was no objection. The jury answered in the negative as to both
defendants and was then discharged. Immediately after the
jury left, counsel for the defendants moved for judgment not-
withstanding the verdict “pursuant to Federal Rule 52(b)” on
the ground that the special findings contradicted the general
verdict.
It is Federal Rule of Civil Procedure 49(b) that covers the
problem of inconsistencies between special interrogatories and
the general verdict. Federal Rule of Civil Procedure 52(b)
applies only where findings are made by the court in the first
instance. The use of special interrogatories should have put
counsel on notice that the provisions of Federal Rule of Civil
Procedure 49 applied. Under Rule 49(b),'' objections to the
inconsistency of verdicts must be made before the jury is
discharged or by motion to resubmit to the jury. Skillen v.
Kimball, 643 F.2d 19, 19-20 (1st Cir. 1981); see Stancill v.
McKenzie Tank Lines, Inc., 497 F.2d 529, 534-35 (5th Cir.
1974); Ludwig v. Marion Laboratories, Inc., 465 F.2d 114, 118
(8th Cir. 1972); Barnes v. Brown, 430 F.2d 578, 580 (7th Cir.
1970). The purpose of the rule is plain: to promote the efficiency
of trials by allowing the original deliberating body to reconcile
inconsistencies without the need for a new presentation of
evidence to a different body. Skillen v. Kimball, 643 F.2d at
20. In the case at bar, counsel waited until after the jury was
excused before raising the inconsistency claim. Defendants
" Fed.R.Civ.P. 49(b) provides in pertinent part as follows:
General Verdict Accompanied by Answer to Interrogatories.
. . . When the answers are consistent with each other but one or
more is inconsistent with the general verdict, judgment may be
entered pursuant to Rule 58 in accordance with the answers, not-
withstanding the general verdict, or the court may return the jury
for further consideration of its answers and verdict or may order a
new trial.
33a
have, therefore, waived their right to have the general verdict
set aside on this ground.
Even had defendants not waived their inconsistency claim,
we would agree with the district court that the general verdict
and the answers to the special interrogatories were not in-
consistent. It is clear from reading the recore that the district
court submitted these questions to determine if punitive dam-
ages should be awarded. As the district court pointed out in its
lengthy post-trial memorandum, the jury could have based its
general verdict of liability on the ground that the defendants
knew or should have known that their actions would violate the
constitutional or legal rights of the teachers or that they acted
with malicious intent. Immunity Instruction, supra, at 25. We
agree with the district court that the only effect of the answers
to the special interrogatories was to rule out punitive damages.
We now come to the post-trial order of the district court. In
rejecting defendants’ motion for judgment notwithstanding
the verdict, the court issued two orders. It directed the De-
partment of Education of the Commonwealth to reinstate all
plaintiffs to the positions held at the time of their demotions.
This order has neither been briefed nor argued on appeal. The
court also ordered the Department of Education to pay all
plaintiffs full back pay. The court then ruled that “as a matter
of law and in light of the jury’s factual finding that the defend-
ants did not have a malicious intent to deprive plaintiffs of their
rights, the relief herein granted exhausts the remedies and
damages available to plaintiffs.” Although we can underscand
the court’s desire to dispatch the case in one fell swoop, we
think the ruling was erroneous.
We turn first to the back pay award: whether the Common-
wealth could be liable for it."* We are guided in answering the
" The district court denied defendants’ motion to amend the judg-
ment by vacating or rescinding the back pay award on the ground
that the motion was untimely. We are not, however, foreclosed from
considering defendants’ attack on the judgment. See Evans v. Sun-
treat Growers & Shippers, Inc., 531 F.2d 568, 570 (Temp. Emer. Ct.
App. 1976).
34a
first question by P.R. Laws Ann. tit. 32, § 3085, which pro-
vides as follows:
Every official, ex-official, employee or ex-employee of
the Commonwealth of Puerto Rico who is sued for dam-
ages 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 o. his
functions, may request the Commonwealth of Puerto Rico
to provide him with legal representation, and to sub-
sequently 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
instrumentalities, mayors and ex-mayors shall be covered
by these provisions, except that for the payment of judg-
ments, 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 in-
surer of the aforesaid public services, nor as a waiver of
the sovereign immunity of the Commonwealth.
Puerto Rico not having waived its sovereign immunity, the
award against its Department of Education cannot stand." Ina
§ 1983 action, “a federal court’s remedial power, consistent
with the Eleventh Amendment, is necessarily limited to
prospective injunctive relief . . . and may not include a retro-
active award which requires the payment of funds from the
state treasury.” Edelman v. Jordan, 415 U.S. 651, 677 (1974).
See Quern v. Jordan, 440 U.S. 332, 341 (1979); Fitzpatrick v.
Bitzer, 427 U.S. 445, 452 (1976). The district court concluded
that the back pay award in the Fumero Soto cases was never-
theless permissible because it was “ancillary” to the prospec-
“The Commonwealth enjoys the full benefits of the eleventh
amendment. Ezratty v. Commonwealth of Puerto Rico, 648 F.2d
770, 776 n.7 (1st Cir. 1981).
35a
tive relief of reinstatement. We cannot agree. The back pay
and reinstatement remedies are entirely distinct; indeed,
plaintiffs no longer with the Department of Education and not
reinstated were held entitled to back pay. It is plainly retro-
active relief requiring the payment of funds from the state
treasury. Moreover, “ancillary” monetary relief that is appro-
priate against a state, Quern v. Jordan, 440 U.S. at 337, is far
different from the relationship between back pay awards and
other equitable relief that justifies a grant of back pay against
bodies that do not enjoy sovereign immunity, see Gurmankin
v. Costanzo, 626 F.2d 1115, 1121-22 (3d Cir. 1980), cert. de-
nied, 450 U.S. 923 (1981) (approving back pay award as part of
remedy in § 1983 and Title VII case) and cases cited therein. It
was on this second, looser relationsip that the district court
erroneously relied.
Plaintiffs argue that the eleventh amendment proscription
does not apply where a state may use federal funds to pay
damages. The cases cited are instances where the state could
seek reimbursement from the federal government, Harring-
ton v. Blum, 483 F. Supp. 1015, 1021-22 (S.D.N.Y. 1979),
aff'd, 639 F.2d 768 (2d Cir. 1980), where a back pay award is at
issue and the state job position was federally funded, Witter v.
Pennsylvania Nat'l Guard, 462 F. Supp. 299, 306 n.9 (E.D.
Pa. 1978), or where state funds are held in a separate account
for an historical society and an award limited to those funds will
not affect the state’s budgetary decisions, Morrow v. Sudler,
502 F. Supp. 1200, 1203-04 (D. Colo. 1980). These decisions are
arguably sound: where the state will be unaffected by an
award, its consent to suit and waiver of sovereign immunity
seem unnecessary. These decisions, however, do not reach the
instant cases where plaintiffs show that at most state and
federal funds are intermingled. Cf. Florida Dep’t of Health &
Rehabilitation Servs. v. Florida Nursing Home Ass’n, 450
U.S. 147, 150 (1981) (per curiam) (state participation in
federally funded public aid program does not amount to waiver
of sovereign immunity). The Commonwealth here cannot avoid
using state funds to pay the award, and its budget will be
36a
affected. We, therefore, hold the back pay award against the
Department of Education barred by the eleventh amendment.
The final issue is the court’s ruling that because of the jury
finding of lack of malicious intent, plaintiffs were not entitled to
any damages from Chardon and Ramos. Unlike most civil
rights damage cases, the individual defendants here never
asserted a good faith defense. Their defense was that the
demotions were for nonpolitical reasons. The district court
pointed this out in its post-trial memorandum, and our review
of the record confirms its finding. There is, therefore, no
question of immunity, absolute or qualified, to be considered.
We think the district court’s ruling that lack of malice pre-
cluded compensatory damages was incorrect. the instructions
to the jury, already quoted, and its general verdict rendered
the defendants liable for compensatory damages. In Wood v.
Strickland, 420 U.S. 308 (1975), the seminal § 1983 civil rights
case on damages against individual defendants, the Court held:
(T]he appropriate [immunity] standard necessarily con-
tains elements of both [“objective” and “subjective” good
vith]. The official himself must be acting sincerely and
with a belief that he is doing right, but an act ae
student’s constitutional rights can be no more justified by
ignorance or disregard of settled, indisputable law on the
of one entrusted with supervision of students’ daily
ives than by the presence of actual malice.
Id. at 321.
Here, the defense was neither good faith nor ignorance;
defendants simply claimed that they did not violate the law.
The jury found otherwise. Compensatory damages follow as a
matter of course. Denial of punitive damages because of lack of
malicious intent is no bar to liability for compensatory damages
on the part of defendants who cannot survive the “ignorance or
disregard” prong of the Wood test. Cf. Morris v. Travisono,
528 F.2d 856, 857 (1st Cir. 1976) (noting unappealed award of
compensatory damages against three defendants but punitive
damages against only two); Smith v. Losee, 485 F.2d 334, 344
(10th Cir. 1973) (en banc), cert. denied, 417 U.S. 908 (1974)
37a
(defendant indirectly responsible for political discrimination
by other defendants against plaintiff is liable for actual dam-
ages but not for punitive damages); Stolberg v. Members of Bd.
of Trustees for State Colleges, 474 F.2d 485, 489 (2d Cir. 1973)
(actual but not punitive damages awarded in political dis-
crimination case); Aumiller v. University of Delaware, 434 F.
Supp. 1273, 1311-12 (D. Del. 1977) (against defendant official
who cannot invoke qualified immunity plaintiff must still prove
malice or wanton disregard of constitutional rights in order to
recover punitive damages).
The Fumero Soto cases not time-barred must be remanded
for a jury trial on compensatory damages.
Summary
In Nos. 80-1237, et al., Rafael Rivera Fernandez et al. v.
Chardon, et al., the judgments are vacated and all the cases
are remanded to the district court with instructions to dis-
miss.*
In Nos. 81-1567 and 81-1607, Juan Fumero Soto, et al. v.
Chardon, et al., the liability judgment in favor of those plain-
tiffs who received letters of notice of demotion after June 19,
1977, is affirmed and the matter is remanded for assessment of
compensatory damages against the individual defendants,
Chardon and Ramos. This is a jury determination unless the
parties agree otherwise. The judgment in the cases in which
the plaintiffs received letters of demotion prior to June 19,
1977, is reversed and the matter is remanded with instructions
to dismiss.
No costs to any party.
Judgments accordingly.
* Judges Campbell and Breyer, not having participated in 81-1567
and 81-1607, join in only so much of the opinion as relates to 80-1237.
38a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Civil No. 79-198
JUAN FuMERO Soro,
Plaintiff,
Vv.
CARLOS CHARDON, et al.,
Defendants.
FINAL ORDER AND JUDGMENT
On May 12, 1981, this Court entered an extensive order
directing that plaintiff educators be reinstated to their pre-
vious positions in the Puerto Rican school system, and that
back pay awards be computed to make plaintiffs whole. After
delays caused by defendants’ inability to provide this Court
with the necessary information in a timely fashion, the Court is
now ready to rule on the back pay issue. In 48 of the 55
consolidated cases, the parties have agreed to the proper mea-
sure of compensation. Pursuant to the terms of the May order,
the Court now orders defendants to pay each plaintiff the
amounts agreed upon.
CASE NAME AMOUNT
NO.
78-1156 Jose Ortiz Rivera $6,000.00
79-67 Syraida Rosa Cardona $8,400.00
79-70 Carmen L. Negron Marin $1,800.00
79-72 Aida Rodriguez Rios $2,450.00
79-73 Carmen H. Montes Velez $1,818.75
79-74 Carmen Garcia Rosado $4,545.56
79-210
79-212
79-213
79-215
79-218
79-219
79-220
79-221
39a
Noelia Torres de Cantres
Iraida Sanchez Marquez
Antonio Rodriguez Rivera
Edda I. De Ayala Lafuente
Josefa Marrero Ayala
Nilsa Cardona Flores
Jose A. Alvarado
Elba M. Colon Torres
Carmen Ortiz Lemois
Andres A. Hernandez Ortiz
Aurora Sierra Pizarro
Virginia Otero Arroyo
Maria V. P»gan Seda
Ana Mercedes Ortiz Colon
Juan Fumero Soto
Dora Castro de Aguilar
Antonio Vega Ortiz
Jose A. Surillo Rodriguez
Reinaldo Rodriguez Solivan
Sylvia M. Denis
Bienvenido Castro Del Valle
Kremlly Rodriguez Valentin
Elba Rosario de Bravo
Lydia Munoz Morales
Angel Luis Marrero Gonzalez
Ramon Norat Zayas
Charles H. Quiles Mariani
Carmen T. Lugo Sotero
$8,332.76
$6,000.00
$ 720.00
$ 196.48
No back pay
$3,600.00
$3,120.00
$1,837.50
$7,200.00
$4,345.00
$ 375.00
$4,350.00
$1,300.00
$7,175.00
$1,920.00
$3,600.00
$ 300.00
$1,571.71
$9,120.00
$6,000.00
$7,200.00
$2,450.00
$ 520.00
$ 710.00
$1,570.04
$2,050.00
No back pay
$ 112.50
40a
79-224 Iris Camelia Velez Morales $5,340.00
79-227 Jorge O. Principe Galarza $3,600.00
79-323 Santiago Gonzalez Velazquez $1,084.96
79-325 Bienvenido Rivera Diaz $1,200.00
79-330 Angela Colon Santiago $2,400.00
79-332 Joaquin Cruz Mendez $2,400.00
79-333 Ursula Aguilar Quintero $8,400.00
79-334 Aminta Rivera Cardonna No back pay
79-335 Roberto Cruz Cruz $1,920 00
79-336 Nelson Velez Quinones $2,450.00
79-357 Cristina Cancel Cuevas $1,200.00
79-358 Maria D. Guerra Navarro $2,400.00
79-361 Francisco Bonilla Ocasio No back pay
79-362 Heriberto Gallardo Gutierrez No back pay
In seven (7) cases, the parties have not been able to agree. In
two of these cases, 79-79, Efrain Tacoronte Ruiz, and 79-326,
Carmen M. Morales Hernandez, the disputes are apparently
only upon the proper figure involved, and the differences are
comparatively minor. While the Court will net enter a final
back pay figure in these two cases without further consultation
with counsel, these two plaintiffs are to be granted the
reinstatement relief set out in the May order.
Despite the two month period granted to gather informa-
tion, in one case, 79-66, Carmen Nunez Rivera, defendants
have indicated they are uncertain as to her status. The defend-
ants are directed to immediately ascertain whether the sug-
gested back pay figure of $3,600 is correct. If it is, then she
should be accorded the same relief as the 48 other cases. Should
the defendants continue to disagree as to the amount of back
pay, they are directed to promptly notify this Court of that fact
and the basis of their disagreement. This plaintiff is to be
4la
accorded the same reinstatement relief as the plaintiffs which
have already been discussed.
In 79-164, plaintiff Jose E. Aponte De la Torre claims he was
demoted from a position as Vocational Director III to teacher
of Industrial Arts. It is ordered that he be reinstated according
to the terms of the May order to his former position. The
remainder of that case regarding his claim that demotion from
one position caused the loss of another part-time position and
further damages will require further consultation.
Inasmuch as the pay discrepancy is quite large, the Court
will entertain further proceedings to deal with this problem.
Similarly, there are polar differences between the parties’
position regarding Nos. 79-329, Juan Rivera Pagan, 79-364,
Julio E. Colon, and 79-188, Carmen D. Perez Roman. These
plaintiffs contend they were not demoted but dismissed, and
have consequently far greater damages. Defendants admit the
dismissals, but contend they are unrelated to the political
problems found in the main consolidated cases. All relief,
monetary and reinstatement, will be stayed in these cases
pending further proceedings.
Final judgments will be entered in accordance with the
foregoing terms of this order in accordance with F.R.C.P.
54(b).
Filing this order, along with the contemporaneous filing of
an order dismissing defendants’ final motion to overturn the
Court’s May 12 order, largely concludes the lengthy and prot-
racted proceedings in these cases. This Court takes the oppor-
tunity to reiterate that the reinstatement relief ordered in May
is to be provided prior to August 3, 1981, the beginning of the
new school year. No stay of that relief will be made by this
Court at this late date. The prompt compliance with the terms
42a
of this and the May order will be required and expected of both
parties.
Enter July 24, 1981
/s/ Robert A. Grant
Ropert A. GRANT
Senior District Judge
43a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CIVIL NO. 79-198
JUAN FuUMERO Soro,
Plaintiff,
Vv.
CARLOS CHARDON, e¢ al.,
Defendants.
ORDER
Defendants have filed on July 6, 1981, their Motion to Vacate
or Rescind the Back Pay Award to plaintiffs as contained in the
May 12, 1981 order of this Court, together with a supporting
memorandum. The basis of this motion is defendants’ allega-
tion that such an award would violate the Eleventh Amend-
ment to the United States Constitution as interpreted by Edel-
man v. Jordan, 415 U.S. 651 (1974), and its progeny. Prior to
and at the trial of this cause, defendants repeatedly raised and
were heard upon numerous defenses put forward in motions to
dismiss and motions for summary judgment. The issue raised
today is one that has already been resolved against defendants
by the judges who considered these matters in this case. Judge
Torruella dealt definitively with these issues in a decision and
order issued September 19, 1980. That order reads in pertinent
part:
Defendants fourth _ is that the claim is barred
by the Eleventh Amendment. They argue that the indi-
vidual Defendants are being sued in their official capaci-
ties and that the suit against them is actually one against
the Commonwealth of Puerto Rico.
This contention by Defendants is without merit. The
Eleventh Amendment does not preclude a suit in federal
court to seek relief from the deprivation of constitutional
rights by state officials. Scheuer v. Rhodes, supra; Ex
44a
Parte Young, 209 U.S. 123 (1908); Down v. Dept. of Public
Welfare, supra. Ex Parte ey the landmark case on
this issue, provides that where the action taken is uncon-
stitutional, as alleged herein by Plaintiff, the individual
official,
.. . “is stripped of his official or representative character
and is subjected in his person [sic] to the consequences of
his individual conduct. The State has no power to impart
to him any immunity from responsibility to the supreme
authority of the United States.” Id., at 159-160.
i. Timeliness
This motion was filed in July, 1981. Trial of the case had been
held in late January, early February, 1981 and resulted in a
verdict for the plaintiffs. Both parties were permitted the
utmost latitude in putting their viewpoint before this Court on
defendants’ motion for a new trial and for judgment notwith-
standing the verdict. An extensive decision and order of the
Court denied defendants’ judgment notwithstanding the ver-
dict, but limited the plaintiffs to the prospective relief of
reinstatement and an award of back pay to make them whole.
The parties were directed to meet and provide the Court with
the applicable back pay figures. Defendants requested and
were granted more time to ascertain the correct amounts.
Fully two months after the Court filed its order, defendants
now again raise a legal issue seeking to set aside the results.
This motion is untimely. This motion should have been made
within ten days of the Court’s decision. F.R.C.P. 50 and 52.
The Court has already considered on the merits one timely
motion of defendants seeking to set aside the judgment of this
Court. See defendants’ Motion to Include Additional Findings
dated May 22, 1981 and the Court’s denial of that motion.
Therefore, defendants cannot claim ignorance of the applicable
time restrictions.
Nor can this motion’s untimeliness be cured by indicating
some relevant, late breaking constitutional pronouncement of
the Supreme Court. The cases defendants depend upon, Edel-
45a
man v. Jordan, 415 U.S. 651 (1974), Fitzpatrick v. Bitzer, 427
U.S. 445 (1976), and Quern v. Jordan, 440 U.S. 332, 341 (1979),
were all decided prior to pretrial motion practice in this case.
While nothing indicates a duty upon this Court to address this
motion on the merits, the Court will do so in the alternative,
secondary to its ruling that the motion is untimely.
Il. The Merits
The defendants contend at length that federal courts in 42
U.S.C. § 1983 actions “may not include a retroactive award
which requires the payment of funds from the state treasury,”
citing Edelman v. Jordan, supra, at 677. There is no merit in
this claim. Defendants admit that the Commonwealth of Puer-
to Rico is not a party defendant, but go on to claim that the
Commonwealth is the “real substantial party in interest.”
Presumably the Commonwealth stands in this position due to
32 L.P.R.A. § 3085, by which the Commonwealth voluntarily
chose to “assume the payment of any judgment that may be
entered against his [public officials] person.” This voluntary
assumption of liability must negate defendants’ arguments.
Nor does the defendants characterization of the Eleventh
Amendment question make the award of back pay “retroac-
tive” merely by calling it so. The relief requested in this case,
reinstatement and back pay, can only be characterized as
prospective in nature, satisfying the standard of Quern v.
Jordan, 440 U.S. 322, 336-37 (1979). The back pay relief is
merely “ancillary” to the prospective relief of reinstatement.
Id. at 349, citing Milliken v. Bradley, 433 U.S. 267, 290 (1977).
It is not a purely retroactive award requiring unauthorized
payments of funds from the Commonwealth Treasury, a cause
that would run afoul of Edelman v. Jordan, supra, at 676-77.
Defendants contend that the Supreme Court’s admittedly
willing authorization of back pay awards against state and local
governments in Title VII cases, Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975), does not indicate that such a back
pay award is possible under § 1983. Albemarle indicates how
46a
important the Court considers back pay in offsetting the act of
discrimination. The Court stated at 422 U.S. at 418-19:
[Where federally protected rights have been invaded,
it has been the rule from the beginning that courts will be
alert to adjust their remedies so as to grant the necessary
relief.” Bell v. Hood, 327 U.S. 678, 684 (1946). . . Where
racial discrimination is concerned, “the [district] court has
not merely the power but the duty to render a decree
which will so far as possible eliminate the discriminatory
effects of the past as well as bar like discrimination in the
future.” Louisiana v. United States, 380 U.S. 145, 154
(1965). And where a legal injury is of an economic charac-
ter,
“(t]he general rule is, that when a wrong has been done,
and law gives a remedy, the compensation shall be
equal to the injury. The latter is the standard by which
the former is to be measured. The injured party is to be
placed, as near as may be, in the situation he would have
yy — if the wrong had not been committed.” Wicker
v. Hoppock, 6 Wall. 94, 99 (1867).
Dismissal based on political affiliations is not less offensive. See
Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445
U.S. 507 (1980). Defendants contend that § 1983 does not con-
stitute sufficient authority to allow for a back pay remedy
despite the jury’s finding of a constitutional violation in this
case. In Gurmankin v. Costanzo, 626 F.2d 1115 (3d Cir. 1980),
cert. denied, 101 S.Ct. 1375 (1981), the Third Circuit specifical-
ly held that a teacher not hired for a constitutionally imper-
missible reason was fully entitled to back pay against the state
agency involved. The Third Circuit concluded that the scope of
relief under 42 U.S.C. § 1983 included back pay computed from
the date when the teacher was wrongfully not hired. The Court
reasoned that “equitable remedies comparable to those
deemed appropriate in Title VII employment discrimination
cases” was necessary, and to refuse it would be incongruous.
Id. at 1121.
In Gurmankin, the court ruled it an abuse of discretion for
the district court not to order back pay. This occurred in a case
where public officials had not acted in bad faith, as opposed to
47a
the facts in this case, yet the agency involved was required to
make back payments as a result of the unconstitutional con-
duct.
The Third Circuit’s reasoning was previously approved by
the Fifth Circuit which has specifically held that back pay is an
equitable remedy available in cases dealing with school dis-
tricts. Harkless v. Sweeny Independent School District, 427
F.2d 319, 324 (5th Cir. 1970), cert. denied, 400 U.S. 991 (1971).
The following portion of that case was cited with approval by
the Gurmankin court at 1122:
Section 1983 was designed to provide a comprehensive
remedy for the deprivation of federal constitutional and
statutory rights. The prayer for back pay is not a claim for
damages, but is an integral of the equitable remedy of
injunctive reinstatement. Reinstatement involves a re-
turn of the plaintiffs to som oe they held before the
alleged unconstitutional failure to renew their contracts.
An inextricable aw of the restoration to prior status is
the payment of back wages properly owing to the plain-
tiffs, diminished by their earnings, if any, in the interim.
Back pay is merely an element of the equitable remedy of
reinstatement. See Smith v. Hampton Training School
for Nurses, supra. See also NLRB v. Jones & Laughlin
Steel my 1937, 301 U.S. 1, 48, 57 S.Ct. 615, 629, 81
+ gt ; Agwilines, Inc. v. NLRB, 5 Cir., 1936, 87 F.2d
146, 151.
For these reasons, the defendants’ July 6, 1981 Motion to
Rescind the Back Pay Award is denied.
Enter July 24, 1981
/s/ Robert A. Grant
Ropert A. GRANT
Senior District Judge
48a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CIVIL NO. 79-198
JUAN FuMERO Soto,
Plaintiff,
Vv.
CARLOS CHARDON, et al.,
Defendants.
ORDER
Defendants’ motion for judgment notwithstanding the jury’s
verdict has required a detailed examination of the jurispru-
dence regarding qualified immunity of state officials from dam-
ages. For the reasons stated in the following Memorandum,
the defendants’ motion for judgment notwithstanding the ver-
dict is denied.
The Court exercises its equitable power to order that the
Commonwealth of Puerto Rico Department of Education rein-
state all those plaintiffs who have remained in their employ to
the respective positions each held, or its functional equivalent,
at the time of their demotion.' This reinstatement may be
accomplished in accordance with the dictates of sound adminis-
trative practices. Therefore, reinstatement may be delayed
until the end of the present school year, but not later than the
start of the next school year. -
The Department is further ordered to pay plaintiffs’ full back
pay in the amount to be computed in each case,’ and to take all
other affirmative relief necessary to make the plaintiffs whole.
Any delay in reinstatement pursuant to the administrative
practices described above will not viviate the requirement that
back pay be awarded up to and inciuding the time reinstate-
ment takes place. Those teachers who chose to leave the De-
49a
partment will be allowed back pay calculated for the period
they were in reduced positions until they voluntarily termin-
ated their teaching positions.
However, as a matter of law and in light of the jury’s factual
finding that the defendants did not have a malicious intent to
deprive plaintiffs of their rights, the relief herein granted
exhausts tive semedies and damages available to plaintiffs.
Despite the bifurcation of this trial into liability and damage
elements, the jury’s findings vitiates the need to hold damage
trials.
With respect to any claim for which no statute of limitation
defense was pending, final judgment will enter pursuant to
Fed.R.Civ. P. 54(b), once the filing requirements of Notes 1
and 2 shall have been complied with and approved by the
Court.
The Court will consider a petition for plaintiff's attorney’s
fees, along with the appropriate briefing and documentation of
time involved when final judgment has been entered according
to the terms of this Order.
Notes
(1) Inapproximately 10-15 of these cases, defendants have
asserted a defense that the claims were barred by the applica-
ble statute of limitations. This defense was specifically re-
served when these cases were consolidated. This issue is
presently before the Court of Appeals for the First Circuit in
related “Chardon” teacher discrimination cases. This Court
will await that decision before dismissing the complaints or
entering judgment on behalf of the individual! plantiffs therein,
pursuant to this Court’s Memorandum Orde» of January 28,
1981.
The parties are directed to meet at the earliest possible time
for the purpose of providing this Court with a list of those cases
where judgment can be immediately entered in accordance
with this Order, and those which would be controlled by the
ruling of the Court of Appeals. This list shall be filed with the
Court within 30 days of the filing of this Order. If the parties
50a
are not in agreement on a particular case, they will immediate-
ly note the basis of their disagreement, specifying the date the
demotion letter was sent, the date received, and the date the
particular complaint was filed. The Court will consider any
supplemental information the parties deem appropriate.
(2) The calculation of the back pay amount should not re-
quire the intervention of the Court. The parties are directed to
meet and calculate the amount owed each plaintiff. A list
setting forth the amount due each plaintiff must be filed within
30 days of the filing of this Order. Judgment will then be
entered accordingly.
SO ORDERED.
ENTER: May 7, 1981
/s/ Robert A. Grant
Ropert A. GRANT
Senior District Judge
5la
Juan Fumero SOTO, Plaintiff,
v.
Carlos CHARDON et al., Defendants.
Civ. No. 79-198.
United States District Court,
D. Puerto Rico.
May 7, 1981.
Hiram Cancio, Jaime R. Nadal Arcelay, Jesus R. Rabell
Mendez, Blanca Mera Roure, and Cancio, Nadal & Rivera,
Hato Rey, P.R., for plaintiff.
Robert Cordova, Sally de Jesus Kellogg, San Juan, P.R..,
Ines Equia Miranda de Casanova, Puerto Rico Dept. of Jus-
tice, San Juan, P.R., for defendants.
MEMORANDUM
GRANT, Senior District Judge, sitting by designation.
Fifty-five school teachers and administrators, plaintiffs in
these 55 consolidated cases, brought individual suits charging
that they were unlawfully discriminated against and demoted
due to their association with and membership in the Popular
Democratic Party (PDP), a political party in the Common-
wealth. Each plaintiff's theory is that Carlos A. Chardon, then
Secretary of Education for the Commonwealth, and his Assist-
ant Secretary for Personnel, Oscar Ramos, members of the
governing New Progressive Party, unlawfully demoted each
of the plaintiffs at dates ranging from May till June of 1977, in
violation of the First and Fourteenth amendments, 42 U.S.C.
§ 1983, and various Puerto Rican statutes. 18 L.P.R.A.
$§ 249e,' 211 and 214 et seg. Actions under Puerto Rican law
'18 L.P.R.A. § 249e prohibits school officials from making person-
nel changes based on an employee's political affiliation.
52a
come within both § 1983 and its jurisdictional predicate, 28
U.S.C. § 1343(3). Examining Board of Engineers v. Flores de
Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L. Ed.2d 65 (1976). It is
impermissible to discriminate in the work place based upon a
person’s political affiliations. Elrod v. Burns, 427 U.S. 347, 96
S.Ct. 2673, 49 L. Ed.2d 547 (1976); Branti v. Finkel, 445 U.S.
507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Perry v. Sinder-
man, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).*
These suits were brought against Chardon and Ramos in their
individual and official capacities. '
Before trial, the individual plaintiffs, each represented by
the same group of attorneys, indicated that a large portion of
their proof at trial would consist of establishing a pattern of
unlawful discrimination, requiring repetitious testimony from
a number of plaintiffs. Inasmuch as the factual and legal issues,
the attorneys and the parties were common to all these cases,
these suits were ordered consolidated pursuant to Fed.R.
Civ.P. 42(a). Subsequently, other judges in this district trans-
ferred a number of “Chardon” cases for inclusion in the con-
solidated trial. This trial was bifurcated, and was to consider
only the liability issues. Fed. R.Civ.P. 42(b). See Court Order,
January 1981. In essence, the jury’s findings on the issue of
liability in this captioned case was made binding upon the
parties in all of the consolidated cases. The damages issues
were not consolidated.
Each of the plaintiffs herein was demoted from the position
of school principal or other supervisory position in which he or
? The affirmative defense that the plaintiffs were confidential or
policymaking employees, and hence, not protected from discharge,
was not raised as an issue in this case.
’ Since Chardon resigned as Secretary before trial, the new Secre-
tary of Education is automatically substituted in her official capacity
for Chardon, Fed.R.Civ.P. 25(d). The caption has not been formally
changed to reflect this. Chardon, of course, remains a defendant in
his individual capacity.
58a
she did not have tenure. Upon demotion as ordered by the
Department he or she was returned to the tenured position as
school teacher or to lesser administrative rankings, as
previously occupied. No one was discharged. While the com-
plaints of most teachers requested declaratory relief,
reinstatement, back pay and punitive damages, approximately
ten to fifteen suits were filed by teachers who chose to leave the
Department during the pendency of these lawsuits. These
ex-teachers were no longer interested in the equitable relief of
reinstatement, but in turn sought a more substantial monetary
judgment than those who remained employees of the Depart-
ment.
These cases were tried to a jury. With the agreement of
counsel, the following instruction was given pertaining to the
defendants’ affirmative defense that they had acted in good
faith while demoting each plaintiff, and thus were protected by
a qualified official immunity:
We have made reference to the affirmative defense of
good faith and a qualified immunity.
The jury is instructed that the defendants were each
public officials of the Commonwealth of Puerto Rico. They
a in their official capacity at all times pertinent
is case.
And, as such, they did enjoy a qualified immunity that
protects them if they acted with a good faith belief
upon reasonable grounds that their actions were necessa-
ry.
It is the existence of reasonable grounds for the belief
formed and acted upon at the time, and in light of all the
circumstances, coupled with a good faith belief, that
affords a basis for a qualified immunity of State officials for
_ that are performed in the course of their official
uct.
The Commonwealth officials who are defendants in this
case are not immune from liability for actions taken under
‘This paragraph is taken from Scheuer v. Rhodes, 416 U.S. 232,
247-48, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974).
dda
Section 1983 if that official knew or should have known
that the action taken within his sphere of official responsi-
bility would violate the Constitutional or legal rights of the
affected, or if the official took the action with the
malicious intention of causing a deprivation of Con-
stitutional or ' rights or other injury to the teachers.’
(emphasis
The jury returned a te for the plaintiff and against each
defendant. The Court then defined malicious intent,’ and re-
quested that the jurors return to their deliberations to answer
the following interrogatory:
Following a ~~; by the jury that the defendants
Carlos Chardon and Oscar Ramos, individually and in
their official capacities are liable to the plaintiffs in this
consolidated cause, the jury is now instructed to deliber-
ate further for the sole of answering this question:
Did the defendant Carlos Chardon have a mualleibue intent
to deprive pla‘ntiffs of their constitutional or other rights?
And a similar question with respect to the other defend-
intent to deprive the plaintif ins oftheir conalttional o
1 ive t intiffs of their constitutional or
other rights? (emphasis added
The jurors answered “No” with cats to each defendant.
No objection was made regarding this interrogatory. It is
noted here that the language in the prior charge and the special
interrogatory is identical. The Court now must give effect, if
‘This paragraph is taken from Wood v. Strickland, 420 U.S. 308,
322, 95 S.Ct. 992, 1000-1001, 43 L.Ed.2d 214 (1975).
* I am going to read to you a definition from a couple of cases as to
what that constitutes.
“Malice is the intentional doing of a wrongful act without just cause
or excuse with an intent to inflict an injury or under circumstances
that the law will imply an evil intent.”
And the other, from the other case, I read as follows: “Malicious-
ness does not necessarily mean actual malice or ill-will, but in-
tentional doing of a wrongful act without legal or social justification.”
55a
possible, to both the general verdict for plaintiff, and the
interrogatory answer that defendants lacked malicious intent.
(1) Punitive Damages
The Supreme Court has construed 42 U.S.C. § 1983 to allow
an award for compensatory damages. It has not, as yet,
definitively ruled as to whether punitive damages are also
available:
To the extent that ss intended that awards under
§ 1983 should deter the deprivation of constitutional
rights, there is no evidence that it meant to establish a
deterrent more formidable than that inherent in the award
of compensatory damages. See Imbler v. Pachtman, 424
U.S. 409 at 442, 96 S.Ct. 984 at 1000, 47 L.Ed.2d 128
(White, J., concurring in judgment).
Cary v. Piphus, 435 U.S. 247, 256-57, 98 S.Ct. 1042, 1048-
1049, 55 L.Ed.2d 252 (1978) (emphasis added) (footnote omit-
ted). The footnote following this holding further explained the
Court's position:
This is not to say that exemplary or punitive damages
might not be awarded in a proper case under § 1983 with
the specific purpose of deterring or punishing violations of
constitutional rights. See, e.g., Giver v. Cormier, 529
F.2d 161, 163-164 (CA10 1976); Stengel v. Belcher, 522
F.2d 438, 444 n.4 (CA6 1975), cert. dismissed, 429 U.S.
118 (97 S.Ct. 514, 50 L. Ed.2d 269] (1976); Spence v. Star-
as, 507 F.2d 554, 558 (CAT 1974); Caperci v. Huntoon, 397
F.2d 799, 801 (CA1), cert. denied, 393 U.S. 940 [89 S.Ct.
299, 21 L.Ed.2d 276] (1968); Mansell v. Saunders, 372
F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d 74,
84-88 (CA3 1965). Although we imply no approval or dis-
approval of any of these cases, we note that there is no
basis for such an award in this case. The District Court
specifically found that petitioners did not act with a mali-
cious intention to deprive respondents of their rights or to
do them other injury, see n.6, supra, and the Court of
Appeals approved only the award of “nonpunitive” dam-
ages, 545 F.2d 30, 31 (1976).
We also note that the potential liability of § 1983 defend-
ants for attorney’s fees, see Civil Rights Attorney’s Fees
56a
Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, amend-
ing 42 U.S.C. § 1988, provides additional—and by no
means inco uential—assurance that agents of the
State will not deliberately ignore due process rights. See
also 18 U.S.C. § 242, the criminal counterpart of § 1983.
Id. at 257 n.11, 98 S.Ct. at 1049 n.11 (emphasis added).
The Court of Appeals for the First Circuit has held that puni-
tive damages are available against § 1983 defendants “when
there are aggravating circumstances.” Fact Concerts, Inc. v.
City of Newport, 626 F.2d 1060, 1067 (1st Cir. 1980), citing
Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 121 (1st Cir.
1977) (bad faith) and Caperci v. Huntoon, 397 F.2d 799, 801
(1st Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d
276 (1968) (unwarranted invasion of privacy). In Rosado, su-
pra, it was stated: “[I}ntentional interference with con-
stitutional rights, standing alone, is not enough; there must
also be ‘aggravating circumstances.’ ” 562 F.2d at 121. Citing
the standards used by other -i-cuits, the Rosado court con-
tinued: “and the Third Circuit has described the standard as
‘malicious and wanton disregard’ of a plaintiffs rights.” /d.
(citation omitted).
The jury’s answer to the interrogatories in this case ended
any claim for punitive damages. As the plaintiff's attorneys
acknowledged, the award of punitive damages is a decision for
the trier of fact. Although the parties failed to raise the issue,
any decision granting or denying punitive damages must in-
clude an assessment of the conduct in question, evidentiary
inferences and evaluations pertaining to motive and knowl-
edge. Alicea Rosado v. Garcia Santiago, supra. See also Lee
v. Southern Home Sites Corp., 429 F.2d 290, 294 (5th Cir.
1970). See also Annot., 14 A.L.R.Fed. 608 (1970). It became
apparent that failure to have questioned this liability jury
regarding the defendants’ intent would have required a full
repetition of the liability trial testimony in any subsequent trial
on the issue of punitive damages. However, based upon the
jury’s findings, no punitive damages can now be awarded.
With this in mind, the Court will now address defendants’
57a
contention that the jury’s interrogatory answers unwittingly
opened the door to an inconsistent verdict.
(11) The Motion For Judgment Notwithstanding The Verdict
Defendants moved for a directed verdict at the close of the
evidence offered by plaintiff, and again at the close of defend-
ants’ evidence on the official immunity defense. The Court
reserved its decision upon that motion. After the jury’s answer
that defendants lacked a malicious intent, defendants moved
for judgment notwithstanding the verdict. Defendants con-
tend that these answers entitle them to prevail in their affirma-
tive defense of qualified immunity, and that the general liabil-
ity verdict is contradicted by the interrogatory answers to the
effect that defendants had no malicious intent. In the alterna-
tive, they claim as a matter of law that the answers bar any
subsequent claim for damages from the individual defendants.
The Court is not persuaded in the first instance that the
findings are contradictory. To that extent, judgment
notwithstanding the verdict is denied. The Court is persuaded,
however, that the jury’s answers do preclude the award of
damages against the defendants in their individual capacity
based upon an independent question of law.
The standard for ruling on a motion for judgment notwith-
standing the verdict is the same as the standard for a directed
verdict motion. The district court is to review the evidence in
the light most favorable to the prevailing party, giving the
plaintiff here the benefit of all the factual inferences that the
evidence fairly supports without weighing the credibility of the
witnesses. Fed. R.Civ.P. 50(b). Fact Concerts, Inc. v. City of
Newport, supra, 626 F.2d at 1064. See also Continental Ore
Co. v. Union Carbide and Carbon Corp., 370 U.S. 690, 696, 82
S.Ct. 1404, 1409, 8 L. Ed.2d 777 (1962); Brady v. Southern Ry.
Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234-235, 88 L.Ed. 239
(1943). Reviewing the testimony presented in this case by that
standard, the Court cannot conclude that the evidence pre-
sented was insufficient to permit a rational jury from reaching
58a
both the verdict of liability and finding on the lack of malicious
intent. Therefore, under the applicable standard the Court
must effectuate both the general verdict and interrogatory
answers. At this point, however, the Court must state its view
of the evidence that was presented. The evidence of political
discrimination and the defendants’ personal involvement in the
demotions was not overwhelming. Candidly, a reasonable man
could have found the plaintiff's proof unconvincing. The Court
will not invade the jury’s province to substitute its credibiiity
determinations and reach an alternative judgment. But in this
case the jury had two bites of the apple so to speak, and both
must be harmonized by the Court, if possible, under a fair
reading of the answers. Fed.R.Civ.P. 49%b). See Gallick v.
Baltimore & Ohio Railroad Co., 372 U.S. 108, 119, 83 S.Ct.
659, 666, 9 L.Ed.2d 618 (1963).
Fed.R.Civ.P. 49 and the cases which construe it indicate
that, “(Where there is a view of the case that makes the jury’s
answers to special interrogatories consistent, they must be
resolved that way.” Atlantic & Gulf Stevedores, Inc. v. Eller-
man Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7
L.Ed.2d 798 (1962). Although that case discussed Rule 49(a),
while this case arises under Rule 49(b), the principles ex-
pressed remain equally valid. In fact, if the difference between
the general verdict and interrogatory answers is perceived as
possibly inconsistent, the general admonition is that the
answers to special interrogatories should control, rather than
the general verdict.’ The power to enter judgment on findings
inconsistent with the general verdict “is a constitutional one
7 Blackwell v. Cities Service Oil Co. , 532 F.2d 1006 (5th Cir. 1976);
Nimnicht v. Dick Evans, Inc., 477 F.2d 133 (5th Cir. 1973); Elliott v.
Watkins Trucking Co., 406 F.2d 90, 92 (7th Cir. 1969); United Air
Lines, Inc. v. Wiener, 335 F.2d 379, 406 07 (9th Cir.), cert. dis-
missed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); United
States v. City of Jacksonville, Arkansas, 257 F.2d 330 (8th Cir.
1958); Golden North Airways, Inc. v. Tanana Publishing Co., 218
F.2d 612 (9th Cir. 1954).
59a
and does not violate the Seventh Amendment since the jury’s
findings of fact are not being reexamined but, as a reasonable
regulation of practice, their more specific findings of fact are
allowed to control their general conclusion embodied in the
general verdict.” 5A Moore’s Federal Practice © 49.04; Wright
and Miller, Federal Practice and Procedure: Civil § 2513. In
summary, while harmonizing the answers the more general
liability verdict must give way to the more specific lack of
intent finding. This principle will be borne in mind when the
qualified immunity issues are considered.
(IIL) Qualified Immunity From Damages
A. Liability
The nature of the qualified immunity defense at common law
and in § 1983 cases has been judicially established commencing
with Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974).* In Scheuer, the Governor of Ohio, the
University President and National Guard officers involved in
the Kent State University killings claimed absolute official
immunity from damages under § 1983. This discussion is of
particular significance in the case before us inasmuch as
Scheuer addresses the scope of immunity available to state
executive officials occupying positions of authority analogous
to those held by the defendants here. The Court began y
noting the reasons why officials had been held immune from
suits for personal damages at common law:
The concept of the immunity of government officers from
personal liability springs from the same root considera-
tions that generated the doctrine of sovereign immunity.
While the latter doctrine—that the “King can do no
wrong”—did not protect all government officers from per-
*The Court has made clear that immunities under § 1983 are to be
read in harmony with the general principles of tort immunities and
defenses. Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989,
47 L. Ed.2d 128 (1976). See also Tenney v. Brandhove, 341 U.S. 367,
71 S.Ct. 783, 95 L.Ed. 1019 (1951).
60a
sonal liability, the common law soon recognized the ne-
cessity of itting officials to perform their official
functions free from the threat of suits for personal liabil-
ity. This official immunity apparently rested, in its gene-
sis, on two mutually dependent rationales: (1) the in-
justice, = y in the absence of bad faith, of subject-
ing to liability an officer who is required, by the legal
igations of his | seme oe to exercise discretion; (2) the
danger that the threat of such liability would deter his
willingness to execute his office with the decisiveness and
the judgment required by the public good.
416 U.S. at 239-40, 94 S.Ct. at 1687-1688 (emphasis added)
(footnotes omitted).
In holding that a qualified official immunity exists, Justice
Harlan’s prior admonitions on this subject were restated, fol-
lowed by the Court’s holding.
“To be sure, the occasions upon which the acts of the
head of an executive department will be protected by the
privilege are doubtless far broader than in the case of an
officer with less sweeping functions. But that is because
the higher the post, the broader the range of responsibili-
ties and duties, and the wider the scope of discretion, it
entails. It is not the title of his office but the duties with
which the particular officer sought to be made to respond
in damages is entrusted—the relation of the act com-
plained of to ‘matters committed by law to his control or
- yer. Spalding v. Vilas, —_, [161 U.S. 483] at
498 [16 S.Ct. 631 at 637, 40 L.Ed. 780}—which must
provide the guide in delineating the scope of the rule which
clothes the official acts of the executive officer with im-
munity from civil defamation suits. 360 U.S., at 573-574,
[79 S.Ct. at 1340-1341).”
These considerations suggest that, in varying scope, a
eo immunity is available to officers of the executive
nch of government, the variation being dependent
u the a of discretion and responsibilities of the
office and all the circumstances as they reasonably
appeared at the time of the action on which liability is
sought to be based. It is the existence of reasonable
— for the belief formed at the time and in light of all
circumstances, coupled with good-faith belief, that
6la
affords a basis for qualified immunity of executive officers
for acts perfo in the course of official conduct.
Id. at 247-48, 94 S.Ct. at 1692 (emphasis added).
In this case, plaintiff concedes that a qualified official im-
munity clothed both Chardon and Ramos inasmuch as the
Commonwealth’s Secretary of Education is given practically
limitless discretionary powers in the personnel area. 18
L.P.R.A. § 211 et seg. While this discretionary power cannot
be used to ratify political discrimination in promotion and
demotion policies, the Schewer Court apparently contempiated
a de facto “sliding scale” of qualified immunity protection for
public officials. In Butz v. Economou, 438 U.S. 478, 98 S.Ct.
2894, 57 L.Ed.2d 895 (1978), the Court again confirmed that
like the state cabinet officials and state governor in Scheuer,
the federal cabinet appointee in Butz deserved the highest
level of protection from suits against him, i.e., below the level
of absolute immunity. Implicitly, this requires a heightened
degree of knowledge, personal participation and malice by the
higher executive official in an allegedly discriminatory action.
See alwo Williams v. Anderson, 562 F.2d 1081, 1101 (8th Cir.
1977).
Scheuer was followed by Wood v. Strickland, 420 U.S. 308,
95 S.Ct. 992, 43 L. Ed.2d 214 (1975), which examined the scope
of immunity for members of a school board in disciplinary
proceedings. Essentially, the Court again sought to steer be-
tween the two weighty and competing concerns in this area—
making public officials responsible for violating citizen’s con-
stitutional rights, without emasculating the officials’ power,
and will, to make difficult or unpleasant decisions when
necessary. See also Butz v. Economou, supra, 438 U.S. at 5038,
98 S.Ct. at 2909.
Comparing the Scheuer defendants with the Wood officials,
the latter occupied much lower executive positions. The
Scheuer analysis would indicate that a lesser degree of qual-
ified immunity would be sufficient to protect the Wood defend-
ants. The “variation” in the scope of the immunity accorded the
62a
officials in Scheuer was at a low ebb in Wood vy. Strickland for
this reason. In Wood the Court held:
Therefore, in the specific context of school discipline, we
held that a school board member is not immune from
liability for ae under § 1983 if he knew or reason-
tbly should have known that the action he took within his
sphere of official responsibility would violate the con-
stitutional rights of the student affected, or if he took the
action with the malicious intention to cause a deprivation
of constitutional or other injury to the student.
Id., 420 U.S. at 322, 95 S.Ct. at 1001 (emphasis added).
In the present case, the jury was instructed, without objec-
tion, in accord with this dual Wood standard. Parsing this
standard, the “should have known” language can be character-
ized as a negligence standard. It is an objective measure of the
defendants’ conduct, although the “knew” portion is subjective
in the sense that it requires an examination of the defendants’
state of mind. Via the conjunctive “or” the Court connected the
second branch to the Wood standard, a subjective intent test
which inquires whether the official maliciously intended to
injure the plaintiff. Based upon the jury’s answer to the special
interrogatory, there was no such impermissible intent in this
case. Therefore, the “knew or should have known” standard is
the branch plaintiffs must depend upon here.
The compelling policy dilemma of the immunity decisions is
the need to balance the plaintiff's compensation for injuries
with the need to protect the decision making process. Barr v.
Mateo, 360 U.S. 564, 565, 79 S.Ct. 1335, 1336, 3 L.Ed.2d 1434
(1959). To complicate any analysis under the Wood holding,
however, the Court has left further instructions which must be
integrated with the liability analysis.
B. Damages
As noted in Wood:
Liability for damages for every action which is found
subsequently to have been violative of a student's con-
63a
stitutional rights and to have caused compensable injury
would unfairly impose upon the school decisionmaker the
burden of mistakes in good faith in the course of
exercising his discretion within the scope of his official
duties. School board members, among other duties, must
judge whether there have been violations of school regula-
tions and, if so, the appropriate sanctions for the viola-
tions. mp me Spe measure of immunity in these circum-
stances “would contribute not to principled and fearless
decision-making but to intimidation.” Pierson v. Ray,
att 386 U.S., [547] at 554, 87 S.Ct., [1213] at 1218 [18
L.Ed.2d 288]. The imposition of monetary costs for mis-
takes which were not unreasonable in the light of all the
circumstances would undoubtedly deter even the most
conscientious school decisionmaker from exercising his
judgment independently, forcefully, and in a manner
best ao long-term interest of the school and the
students. The most capable candidates for school board
itions might be deterred from seeking office if heavy
urdens upon their private resources from monetary
liability were a likely prospect during their tenure.
420 U.S. at 319-20, 95 S.Ct. at 999-1000 (emphasis added)
(footnote omitted).
In addition to the Scheuer and Butz “sliding scale” of immun-
ity, and the Wood liability standard, the Court has indicated
here that merely satisfying the Wood liability test may not be
sufficient to allow an award of damages. Once liability exists,
damage awards still depend to some degree on the subjective
determination of whether the official acted in good faith, e.g.,
whether the “mistaken” constitutional deprivation is reason-
able or unreasonable. Rather than only one standard by which
to provide a readily discernible litmus test to judge official
immunity, it is apparent from the Court’s opinion that the
analysis regarding damages is more complicated. An official
could make a “reasonable” mistake protected by official im-
munity, a mistake which might otherwise constitute an action-
able violation of 42 U.S.C. § 1983.
The Court concluded the Wood analysis by making the
following admonition regarding damages:
64a
A com atory award will be appropriate only if the
school Sear member has acted vik ont an impermissi-
ble motivation or with such disregard of the student's
clearly established constitutional rights that his action
cannot reasonably be characterized as being in good faith.
Id. at 322, 95 S.Ct. at 1001 (emphasis added).
Before evaluating the verdict and interrogatory answers in
light of the Wood damage holdings, it appears that integrating
these damage teachings with the liability standards yields a
presumably unintended conflict. Under § 1983 and the Wood
liability standard of “knew or should have known,” liability can
exist for non-deliberate conduct. However, in the absence of an
impermissible motivation, or deliberate disregard for citizen’s
rights, damages should not be awarded. The conflict does not
stem from faulty analysis, but is a product of the requirement
that a balance be struck which protects both citizens and offi-
cials. In effect, qualified immunity protects officials like Char-
don and Ramos from damages even when they objectively
should have known that violations of constitutional rights were
occurring, but where they took these actions in the absence of
malicious or bad motivation. While a specific answer to the
question of whether the mistake was “reasonable” or “un-
reasonable” would clearly answer this concern, no jury finding
exists on that question.
Although the Supreme Court has specifically limited the
Wood v. Strickland decision to the context of school discipline,
O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45
L.Ed.2d 396 (1975), these damage teachings have been ex-
panded upon and utilized in other areas. Rather than slavishly
utilizing the Wood v. Strickland decision, these cases indicate
that the standard for awarding damages against officials is
higher than mere negligence on the part of the official in-
volved.’
* The Supreme Court has left open the question of whether negli-
gence on the part of state officials 1s sufficient to constitute a con-
stitutional violation. See Baker v. McCollan, 443 U.S. 137, 99 S.Ct.
2689, 61 L.Ed.2d 433 (1979). The cases collected in Bonner v. Cough-
65a
The appropriate test, drawn from the Supreme Court’s opin-
ions, was stated by the Seventh Circuit in Thomas v. Pate, 516
F.2d 889, 891, n.2 (7th Cir.), cert. denied, 423 U.S. 877, 96
S.Ct. 149, 46 L.Ed.2d 110 (1975), and again restated as the
holding of Bonner v. Coughlin, 545 F.2d 565, 568 (7th Cir.
1976) (en bane), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55
L.Ed.2d 529 (1978) (footnote omitted):
[A] plaintiff must prove that the defendant has acted
within the sphere of his official responsibility, “with the
malicious intention to cause a deprivation of constitutional
rights or other injury to the [plaintiff] or “with such dis-
to the [plaintiff's] clearly established constitutional
rights that his action cannot reasonably be characterized
as being in good faith.”
Neither test is satisfied here. First, the jury finding that there
was no malicious intent precludes the Court from finding the
officials acted out of an impermissible motivation. Nor does the
evidence presented at trial support such a proposition.
Second, plaintiff claims that defendants objectively acted
with a deliberate disregard of his established constitutional
rights, e.g., the employee's right not to be discharged for his
political affiliations. As an example, plaintiff cites McCormick
v. Edwards, 479 F.Supp. 295 (M.D.La.1979), where the dis-
trict court ruled that public officials could not rely on their
subjective claim that they had acted in good faith, while plead-
ing ignorance of clearly established due process rights. The
defendants in that case knew of the due process rights but
claimed not to know these rights applied to the plaintiff. /d. at
299.
This type of analysis is not helpful in the case at bar where
Chardon and Ramos have never claimed ignorance of the law,
lin, 545 F.2d 565, 568 n.&8 (7th Cir. 1976) (en banc), cert. denied, 435
U.S. 932, 98 S.Ct. 1507, 55 L. Ed.2d 529 (1978), indicate the majority
view is that mere negligence is not enough. The First Circuit holding
is to that effect. Page v. Sharpe, 487 F.2d 567 (ist Cir. 1973). See also
Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978), cert. denied, 444 U.S.
883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).
66a
or of the teacher’s right not to be discharged for his political
affiliations. Defendants do not claim good faith in light of an
unexpected, late-breaking constitutional doctrine as discussed
in Woods. Their theory throughout this litigation has been that
the demotions were for non-political reasons, and that their
personal role in these decisions, particularly Secretary Char-
don’s, was extremely limited. Although plaintiff is correct in
asserting that the right in question is a clear proposition of
constitutional law it is proof of motive that is the key to unlock-
ing this case.
The burden of proving what can conveniently be analogized
as the two-sided qualified immunity coin, with proof of the
officials’ good faith on one side, or proof of their bad faith on the
other, has been seen as mutually exclusive propositions. The
First Circuit succinctly stated this in Gomez v. Toledo, 602
F.2d 1018, 1020 (1st Cir. 1979), rev'd, 446 U.S. 635, 100 S.Ct.
1920, $4 L.Ed.2d 572 (1980):
ap tn mae any ny a ge pe ee
that in a civil ee oo
— in their o capacity enjoy aq immunit
eet eng a if they acted with a good faith belief
reasonable grounds that their actions were
necessary. + to put it conversely, a plaintiff in such an
action must wt sence Sm acted in bad faith,
malice or recklessness. Butz v. Economou,
438 U.S. 478, 98 S.Ct. 2894, 57 L. Ed.2d 895 (1978); O’Con-
nor v. Donaldson, 422 U.S. 563, 95S.Ct. 2486, 45 L.Ed.2d
396 (1975); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992,
43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232
[94 S.Ct. 1683, 40 L. Ed.2d 90] (1974); Pierson v. Ray, 386
U.S. 547, 87 S.Ct. 1213, 18 L. Ed.2d 288 (1967); Tenney v.
Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019
)
(emphasis added).
‘The Supreme Court has not passed upon the burden of proving,
as opposed to pleading, the official immunity defense. The First
Circuit originally had charged the plaintiff with the burden of plead-
ing and proving bad faith on the part of the officials involved. Gomez
v. Toledo, 602 F.2d 1021 (ist Cir. 1979). This decision was reversed
67a
In this case, defendants contend that the finding that they
did not act with a malicious intent is tantamount to a finding
that they acted in good faith. If such were the case, defendants
would have succeeded in proving that they are clothed with a
qualified immunity in this case. Likewise, plaintiff contends
that the general liability finding constitutes a finding of bad
faith in the objective sense, although they concede that the
jury found the defendants did not have the subjective intent to
deprive plaintiffs of their rights. Candidly, these admittedly
less than definitive findings do not yield what either party
would like them to. A finding that the defendants objectively
“knew or should have known” discrimination was occurring
may be sufficient for a general finding of liability but it does not
satisfy the requirements for damages. Defendants proffered
and the jury accepted proof that they did not act with a mali-
cious intent. This does not, however, indicate that they acted
in good faith.
The peculiar context of the present case simply does not
permit the expected converse finding, discussed by the First
Circuit, to occur. Instead, readily discernible elements of each
alternative appear and can be rationalized to yield a ccherent
result. This result, however, convinces us that further legal
damages cannot be awarded.
by the Supreme Court which held that § 1983 plaintiffs did not have
to anticipate what is an affirmative defense, :.¢., the good faith
actions of the officials involved, by pleading that they acted in bad
faith. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L. Ed.2d 572
(1980). Justice Rehnquist concurred in the Court's otherwise unani-
mous opinion, but noted his belief that the burden of persuasion,
apart from the burden of pleading, remained undecided.
The Court cited several cases to indicate that the burden of persua-
sion lies with the officials. McC ray v. Burrell, 516 F.2d 357, 370 (4ta
Cir. 1975) (en banc), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48
L.Ed.2d 788 (1976); Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978);
cited in Gomez v. Toledo, 446 U.S. at 638 n.5, 100 S.Ct. at 1922 n.5.
No contrary rulings were cited.
68a
Further research disclosed a number of cases which leave
the burden of proving good faith to the defendant officials.
When Bivens v. Six Unknown Named Agents, 403 U.S. 388,
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) was remanded, the
Second Circuit placed the burden on the police officers to show
they had reasonable beliefs regarding the legality of their
actions. 456 F.2d 1339, 1347-48 (2d Cir. 1972). See also Thomp-
son v. Burke, 556 F.2d 231 (3d Cir. 1977); Skehan v. Board of
Trustees of Bloomsburg State College, 538 F.2d 53, 61-62 (3d
Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 490, 50 L. Ed.2d 588
(1976); Bryan v. Jones, 530 F.2d 1210 (5th Cir.) (en banc), cert.
denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145 (1976);
Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.), cert.
denied, 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975);
Safeguard Muiual Insurance Co. v. Miller, 472 F.2d 732 (3d
Cir. 1973); Benford v. American Broadcasting Companies,
Inc., 502 F.Supp. 1148 (D.Md.1980); Fujiwara v. Clark, 477
F.Supp. 822, 832 (D.Haw.1979); Eckerd v. Indian River
School District, 475 F.Supp. 1350, 1368 (D. Del. 1979); Camer-
on v. Montgomery County Child Welfare Service, 471 F.Supp.
761, 764 (E.D.Pa.1979); Forsyth v. Kleindienst, 447 F.Supp.
192, 202 (E.D.Pa.1978), modified on other grounds, 599 F.2d
1203 (3d Cir. 1979); Exbanks v. Clarke, 434 F.Supp. 1022,
1033-34 (E.D.Pa.1977); Mack v. Johnson, 430 F.Supp. 1139,
1147 (E.D.Pa.1977), aff'd, 582 F.2d 1275 (3d Cir. 1978); Bur-
khart v. Saxrbe, 397 F.Supp. 499, 502 (E.D.Pa.1975).
In this case, the burden of proof on the qualified official
immunity defense was allocated to the defendants. This in-
struction was accepted without protest by both parties. There-
fore, they are bound by it. Fed.R.Civ.P. 51. Weade v. Dich-
mann, Wright & Pugh, Inc., 337 U.S. 801, 808, 69S.Ct. 1326,
1330, 93 L.Ed. 1704 (1949) (civil case); Johnson v. United
States, 318 U.S. 189, 200, 63 S.Ct. 549, 554, 87 L.Ed. 704
(1943); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct.
391, 392, 80 L.Ed. 555 (1936); 5A Moore’s Federal Practice
51.04 at 51-28, 51-30 to 51-35; Redmond v. Baxley, 475 F Supp.
1111, 1115 (E.D.Mich. 1979).
69a
If the proof of the parties is less than definitive upon the
defense of qualified official immunity, then the policy concerns
of Scheuer and Wood, the need to protect the decision making
powers of public officia's, particularly state cabinet members,
comes to the fore. The case at bar presents at best ambiguous
findings regarding the motivation these officers brought to this
situation. In suci: an ambiguous case, where the Court can
exercise its equitale powers to make plaintiffs whole, further
damages are not warranted.
This comports with the Supreme Court’s instructions
regarding § 1983 damages. Although by its own terms § 1983
creates a species of tort liability that admits of no immunities,
Owen v. City of Independence, Missouri, 445 U.S. 622, 650-51,
100 S.Ct. 1398, 1415-1416, 63 L.Ed.2d 673 (1980), qualified
immunity for public officials has been a product not of legisla-
tion, but of “judicial thinking” upon the conflicting policies
involved. Butz v. Economou, supra, 438 U.S. at 501-02, 98
S.Ct. at 2908. Applying this judicially created immunity in
accord with the dictates of prior decisions, if damages are not
limited we run the risk of “dampen|ing] the ardor of all but the
most resolute, or the most irresponsible, in the unflinching
discharge of their duties.” Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949) (Learned Hand, Judge).
Where the Supreme Court has considered the role of dam-
ages as compensation for violations of constitutional rights, it
has indicated that restraint is recommended. Absent con-
gressional authorization, a court may also be impelled to think
more carefully about whether the type of injury sustained by
the plaintiff is normally compensable in damages. Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 38%, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971). Justice Harlan further noted,
“[F Jor people in Bivens’ shoes it is damages or nothing.” Jd. at
410, 91 S.Ct. at 2012. That is not the case here. As will become
clear, the plaintiffs here can be given the bulk of the relief
sought via equity, without infringing upon the policy concerns
discussed by the Court in the qualified official immunity cases.
Because that is the case, the efficacy of protecting the official's
70a
decision making power deserves full concern, in accord with
the teachings of the Supreme Court. For these reasons, no
further proceedings to establish damages are necessary, nor
can any be awarded in this case.
(IV) Injunctive Relief
While the scope of the qualified immunity defense prohibits
the further award of damages, the question of whether equita-
ble relief may be granted poses an entirely different issue. The
dominant policy concern which prohibited damages, i.e., the
potential chilling effect upon decision makers, is no longer
present. The impact that this has on the efficacy of allowing
relief was touched upon, albeit briefly, by the Court in Wood v.
Strickland, 420 U.S. at 314-15 n.6, 95 S.Ct. at 996-997 n.6,
which stated in part, “[I]mmunity from damages does not
ordinarily bar equitable relief as well.”
A more definitive examination of this reasoning can be found
in Rowley v. McMillan, 502 F.2d 1326 (4th Cir. 1974). In that
case, a class action filed by persons arrested, assaulted, and
expelled from a speaking engagement of then President Nixon,
sought declaratory relief against similar actions in the future.
The district court found the law enforcement officers involved
had no constitutional basis for their actions, and granted a
preliminary injunction on plaintiffs behalf. The Court of
Appeals rejected the officials’ defense of qualified official im-
munity. Referring to Barr v. Mateo and Scheuer v. Rhodes
(the same portions of which have been restated again in t'iis
memorandum, supra) the Fourth Circuit indicated its reasons
for upholding injunctive relief:
These two quotations demonstrate that the immunity
rule, whatever its scope, is grounded upon the inhibitory
effect of suits for money . Manifestly, actions for
injunctive relief do not have that effect. The federal de-
fendants have cited no case, and we have found none,
which holds that the immunity doctrine insulates a public
official or public employee from injunctive relief to pre-
vent what would ot i So an Mined act on i gust.
Tla
Scheuer states that the immunity doctrine stems from the
same considerations that generated the doctrine of
sovereign immunity. That immunity is embodied in the
eleventh amendment, so that it is signi t to note that
since Ex Parte Young, 209 U.S. 123 [28 S.Ct. 441, 52
L.Ed. 714] (1908), the law has been settled that,
notwithstanding the eleventh amendment, in an appropri-
ate case a state official may be | ag by a federal court
from future violation of federal law.
Thus, we conclude that the preliminary injunction is not
vulnerable to the claim of official immunity.
Id. at 1332.
The reasoning in Rowley v. McMillan is followed by Stanford
Daily v. Zurcher, 550 F.2d 464 (9th Cir. 1977), rev'd on other
grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).
See also Jacobson v. Tahoe Regional Planning Agcy., 566
F.2d 1353 (9th Cir. 1977), aff'd in part, rev'd in part, 440 U.S.
391, 99 S.Ct. 1171, 59 L. Ed.2d 401 (1979); Safeguard Mutual
Insurance Co. v. Miller, 472 F.2d 732, 734 (3d Cir. 1972);
Martin v. Wray, 473 F.Supp. 1131, 1138 (E.D. Wis. 1979). For
these reasons, any ruling on the equitable requests for
reinstatement of the plaintiffs, and the concomitant back pay
for the period during which they have been demoted, is not
made under the stringent concerns previously discussed.
Both parties understood, previous to trial and afterwards,
that the decision for or against ordering reinstatement was
peculiarly within the discretion of the trial court."' Equitable
relief has traditionally been the province of the Court. While
"' The facts which gave birth to the claim for equitable relief were
adjudicated by the jury. The plaintiffs are wholly incorrect when
they state that this aspect of the case was tried by the jury. In fact,
the plaintiffs had previously taken the position that had the jury
found for the defendants, the district court, nevertheless, could
order reinstatment and other relief independent of that verdict. To
now make such an inconsistent argument does not advance their
case.
72a
the Court indicated a preliminary intention of being guided by
the jury’s finding, the jury’s verdict was merely advisory in
this respect, not a mandatory finding that binds the Court. It
was always accepted by the parties that the right to trial by
jury did not extend to the right of reinstatement. See Ross v.
Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L. Ed.2d 729
(1970).
What plaintiffs did succeed in doing at trial was to establish a
cause of action under Section 1983, despite the fact that the
jury’s findings preclude damages against the defendants in-
volved. The proof of a § 1983 action, absent a claim of qualified
official immunity requires only two elements: (1) That the
defendants acted under color of state law, and (2) that a con-
stitutional right has been denied. Adickes v. S. H. Kress &
Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142
(1970).
Since there was a violation, “an equity court possesses some
discretionary power to award damages in order to do complete
justice.” Walter v. Marathon Oil, 7th Cir., 642 F.2d 1098
(1981), citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 95
S.Ct. 2362, 45 L.Ed.2d 280 (1975).In Albemarle, a Title VII
case, the Court held that back pay should not be withheld
without special reason. When a public employee is discharged
in violation of his First Amendment or other constitutional
rights, he is entitled to reinstatement and back pay. Eckerd v.
Indian River School District, 475 F.Supp. 1350, 1365
(D.Del. 1979).
Weighing all of the competing interests in this case, all of the
teachers in this consolidated case are ordered to be reinstated
and given back pay, pursuant to the terms of the court’s order.
This award is made in light of the testimony presented at
trial, the verdict of the jury, and the interrogatory answers as
interpreted by this Court. In equity, if other remedies are
made available to the plaintiffs, this award would of necessity
have to be fully reconsidered and evaluated. “(Since it is the
historic purpose of equity to secure complete justice, the
73a
courts are able to adjust the remedies to as to grant the
necessary relief, Equal Employment Opportunity Commis-
sion v. General Tel. Co. of Northwest, Inc., 599 F.2d 322 (9th
Cir. 1979), aff'd, [446 U.S. 318] 100 S.Ct. 1698, [64 L.Ed.2d
319] (1980). . . ,” quoted in Walters v. Marathon Oil, supra.
This award is also in accordance with the principles of § 1983
relief.
74a
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Civil No. 78-1156
Jose Ortiz Rivera, Plaintiff
Vv.
CARLOS CHARDON, individually and as Secretary
of Public Education of the Commonwealth of Puerto Rico
and
Oscar L. Ramos, individually and as Assistant Secretary of
Public Education in Charge of Personne! of the
Commonwealth of Puerto Rico,
Defendants
DECISION AND ORDER
This civil rights action is for a second time before us on
Defendants’ Motion for Summary Judgment. The facts are
essentially outlined in our Decision and Order of November 24,
1979. However, for the sake of clarity and for purposes of
analysis of the pending Motion we repeat and add to them
below.
Plaintiff is a high school teacher in Orocovis, Puerto Rico. It
is a position in which he has tenure. During the 1976-1977
school year he served as Director of Schools in Orocovis. The
evidence on record reveals that this appointment was subject
to renewal on a year to year basis according to the
recommendations of his supervisors and the needs of the De-
partment of Education.' On May 27, 1977 Plaintiff, both orally
'See Defendants’ Motion for Summary Judgment, August 15,
1978, Exh. 3, letter dated August 17, 1976 of Ramon A. Cruz,
Secretary of Education, to Plaintiff.
75a
and through a written letter, requested from the Superinten-
dent of Schools for the Orocovis District that he be retrans-
ferred to his former position as a social science high school
teacher.’ The present action, however, is premised on the
contention that shortly thereafter he changed his mind about
returning to his previous position as a teacher and wished to
remain in the position of Director. See Plaintiff's Sworn State-
ment of September 20, 1978.’ OnJune 21, 1977* he was officially
notified that he would not be renewed in his position as Direc-
tor. The letter so notifying Plaintiff of this fact reads:
“Dear Mr. Ortiz Rivera:
“As you kr.ow the appointment to the position you now
occupy expires with the termination of the present school
year.
“While we appreciate your collaboration we remind you
that you are correspondingly reinstated to the position in
which you have tenure in the system. To this effect our
Personnel Division is proceeding to reinstate ye to posi-
tion number 0129 which is as Secondary School Teacher in
the Orocovis District effective at the commencement of
the next school year.””
* This letter is part of the record before us. See Defendant's Motion
for Summary Judgment, August 15, 1978, Exb. 2, letter dated May
27, 1977 from Plaintiff to Mrs. Nelida Melendez de Ortiz. See also
Sworn Statement of Plaintiff, Sept. 30, 1978.
* There is no documentary evidence to this effect other than Plain-
tiffs Sworn Statement. The reasons given by Plaintiff for not
withdrawing the letter of May 27, 1977 or submitting a new one
reflecting his changed feelings is that: (1) he did not believe the letter
had any legal effect and (2) he had been informed that the decision not
to renew him as a Director had already been made.
‘ This notice is dated June 10, 1977 but stamped as received on June
21, 1977. There is no dispute on this fact.
* Our translation. See Decision and Order of November 23, 1978 p.
3. This is Attachment A to the Complaint.
76a
At the commencement of the 1977-1978 school year Plaintiff
returned under protest to his previous position as a high school
teacher. See Attachment B to the Complaint.
On June 19, 1978 a complaint was filed wherein Plaintiff
alleged that Defendant’s non-renewal of his contract as a
Director was politically motivated in that he was not of the
same political affiliation as the Secretary of Education and the
higher officials within the Department. Defendants’ first Mo-
tion for Summary Judgment was premised on the contention
that the transfer was legal because Plaintiff had in effect in-
itially requested it and as such their actions were only a re-
sponse to this voluntary request. While noting that this was a
plausible argument on the ultimate merits involved in this
litigation we rejected it as falling short of the burden of proof
placed on Defendant in this type of request for summary judg-
ment. Where a plaintiff has alleged impermissible reasons for a
dismissal or a transfer it is not sufficient on summary judgment
that the defendant simply set forth permissible reasons for his
actions. In this type of situation the Defendants had the burden
not only of showing that a permissible factor could have moti-
vated the transfer-demotion, but that no impermissible factor
was involved. See: Mt. Healthy City School District Board of
Education v. Doyle, 427 U.S. 274 (1972); McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Mack v. Cape Elizabeth
School Board, 553 F.2d 720 (C.A.1, 1977). In the case at bar
Defendants’ supporting material was substantial with respect
to the first part of this burden, but totally lacking with respect
to the second part. Our review of the record reveals that it
remains lacking on this point to this date.
Defendants’ present Motion for Summary Judgment raises
for the first time the claim that this cause of action is time
barred. This Motion raises identical problems to those present
77a
in Allende Vazquez v. Chardon, et al., Civil Number 79-71.°
Our analysis and decision therein will control much of the
controversy present here. However, the different factual cir-
cumstances of these two cases requires that we dispose of
these two cases separately, and consequently, differently.
There is no dispute here as to either the limitations period that
controls or the rule which determines when this limitations
period accrues. See: Allende Vazquez v. Chardon et. al., at
pgs. 3, fn. 6;4. In spite of this both parties argue opposite ends
as to exactly what date should be fixed as the date of accrual of
Plaintiff's cause of action. These opposing views are set out as
follows.
Defendants contend that the limitations period commenced
to run on May 27, 1977. Defendants’ take this date from Plain-
tiffs own Sworn Statement wherein he relates his conversa-
tion with the Superintendent of Schools for the Orocovis Dis-
trict. Said Statement reads in part:
“That it is true that on or about May 27, 1977, I personal-
ly visited Mrs. Nelida Melendez de Ortiz, the Superinten-
ent of Schools at Orocovis School District, and informed
her, in writing, that I wished to return to my position of
(sic) school teacher at high school level during the 1977-78
school year, position in which I had tenure;
“That on said occasion Mrs. Melendez informed me that
my position was not necessary since it had already been
determined at the Department’s level (sic) that I was
going to be removed from the position of school director
and was going to be assigned to my permanent position of
school teacher;”
Defendants argue that because Plaintiff was orally informed on
May 27, 1977 that “it had already been determined [that he]
® Ordinarily we would not cite or use as authority a holding found in
an unpublished opinion, ef. Rule 14, Rules of the United States Court
of Appeals for the First Circuit. However, no unfairness accrues in
the present case since all parties in these related cases are repre-
sented by the same counsel.
78a
was going to be removed from the position of school director”
and reassigned to his previous position that this then is the date
when Plaintiff “knew or had reason to know of his injury.”
Plaintiff retorts that the date when his cause of action
accrued was in August of 1977,’ the date when the new school
year started and he found himself out of a job as a school
director. Under Plaintiff's argument it is at this point when he
is in fact demoted and thus has suffered an “actual injury.”
Under Plaintiff's analysis the possibility or probability that an
event might happen in the future is not sufficient to find that a
right has been violated and thus to say that the computation of
the time limit for the enforcement of that right began to run.
In Allende Vazquez v. Chardon, et al., supra, we were faced
with the question of determining whether an identical cause of
action accrued on the date the Plaintiff was officially notified
that he was demoted or the date this demotion actually took
effect, which was some time later. The factual framework now
before us presents a third possibility: the date when Plaintiff
was orally and unofficially informed that he would be reas-
signed. In Allende Vazquez we found the date of the official
notice of reassignment controlled. The present case evinces no
reason which would compel a different conclusion.
The rationale behind our holding in Allende Vazquez was,
that after receipt of an official notice of reassignment, a Plain-
tiff who was aware of the impermissible reasons for the official
action had a viable cause of action. In such a situation he could
both seek and secure relief against the discrimination. How-
ever, applying the same reasoning to the case at bar we cannot
draw the same conclusion. First, from the informal and unoffi-
cial information Plaintiff received in May, 1977 one could not
conclude that Plaintiff lost all reasonable expectations that he
would continue at his position. Second, and along the same
™ No specific date in August is advanced in this record by Plaintiff
as the date when classes officially commenced for the 1977-1978
school year.
79a
lines, from the informal conversation one cannot conclude that
Plaintiff was in fact demoted or reassigned. Until he was
informed officially Plaintiff had no reason to believe that he
was demoted. Third, although even the threat of a politically
motivated dismissal may have been sufficient to invoke a cause
of action, see Allende Vazquez, at p. 5, it is unclear from the
record before us whether at the May 27, 1977 conversation
Plaintiff knew, or should have known, of the illegal motivations
behind the decision to return him to his previous position." The
very fact that the object of this conversation was Plaintiff's
contemplated voluntary return to his previous position is in-
dicative of the contrary.
The above facts persuade us that our analysis in Allende
Vazquez is equally applicable. The present type of cause of
action accrues on the date Plaintiff is officially informed that he
is being demoted and he is aware of the reasons for this demo-
tion. It is at this point that there is present a “complete and
present cause of action.” Rawlings v. Ray, 314 U.S. 96, 98
(1948). In the present case this occurred on June 21, 1977.
Therefore, a complaint filed on June 19, 1978 would be timely.
Lastly, in the file before us we note “Defendants’ Opposition
to Plaintiff's Motion to Strike Affirmative Defenses,” January
31, 1980. We do not, however, find that Plaintiff has herein
filed a Motion to Strike affirmative defenses. In any event
because these defenses are identical to those reviewed in Gar-
cia Rosado v. Chardon, Civil Number 79-74, we see no reason
why our disposition with this question therein should not con-
trol here also.
* Other than Plaintiff's own Sworn Statement, Defendants present
no other factual material to substantiate this point. Because this is an
issue of fact which is disputed, and indeed on the present record must
be resolved against the Defendants, we must bear in mind the limita-
tions of a Motion for Summary Judgment.
80a
For all the above cited reasons Defendants’ Motion for
Summary Judgment is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of April, 1980.
/s/ JUAN R. ToRRUELLA
JUAN R. TORRUELLA
U.S. DISTRICT COURT JUDGE
8la
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Civil No. 78-1156
Jose Ortiz Rivera, Plaintiff,
Vv
CARLOs CHARDON, individually as Secretary
of Public Education of the Commonwealth of Puerto Rico,
and
Oscar L. Ramos, individually and as Assistant Secretary,
in charge of Personnel of Public Education of the
Commonwealth of Puerto Rico,
Defendants.
-SWORN STATEMENT OF JOSE RIVERA ORTIZ-
I, JOSE RIVERA ORTIZ, after being duly sworn according
to the law, under oath, depose and say:
That my name is as specified above;
That I am of legal age, married, and a resident of Orocovis,
Puerto Rico;
That, at present, I work as secondary school teacher at the
high school of the school district of Orocovis;
That I am plaintiff in the above captioned class action;
That I was demoted or removed from the position of
Secondary School Director, Category IV, on June 10, 1977 to
School Teacher, effective said demotion on the
beginning of the 1977-78 school year, as per letter dated on said
date, signed by Mr. Julio Cintron Lopez, Director of Teacher’s
Personne! Division of the Department of Education of Puerto
Rico.
That it is true that on or about May 27, 1977 I personally
visited Mrs. Nelida Melendez de Ortiz, then Superintendent of
82a
School at Orocovis School District, and informed her, in writ-
ing, that I wished to return to my position of school teacher at
high school level during the 1977-78 school year, position in
which I had tenure;
That, on said occasion Mrs. Melendez informed me that my
petition was not necessary since it had already been deter-
mined at the Department’s level that I was going to be re-
moved from the position of School Director and was going to be
assigned to my permanent position of sciool teacher;
That Mrs. Melendez did not receive my letter officially; did
not file it nor put it in any part of the office where it could be
filed later, but instead took the letter and placed and kept it on
her purse;
That she didn’t answer my letter, officially or otherwise;
That nobody else in the Department of Education answered
my letter, officially or otherwise;
That the only letter I received in relation with this matter
was the one dated June 10, 1977, in which, as it had been
advanced by Mrs. Melendez, I was informed that I had been
reinstalled to occupy position 0129 in the district of Orocovis as
Secondary School Teacher.
That on June 30, 1977 I decided to take my case to the U.S.
District Court since I then believed and still believe that my
rights under the pertinent constitutional and legal! provisions
had been violated;
That I didn’t withdraw my letter since I was told by Mrs.
Melendez that said letter had no effect whatsoever, and,
simultaneously she placed it in her purse;
That it is not true that I asked Mrs. Melendez, verbally, to be
relocated to another school other than the one I had directed.
Sa
Given at San Juan, Puerto Rico, this 30th day of September,
1978.
/s/ Jose Ortiz Rivera
Jose Ortiz RIVERA
Deponet
Affidavit NO. 2101
Sworn and subscribed to before me by Mr. Jose Ortiz
Rivera, of legal age, married, and a resident of Orocovis,
Puerto Rico, to me personally known in SanJuan, Puerto Rico,
this 30th day of September, 1978.
/s/ Harry R. Nadal Arcelay
Harry R. NADAL ARCELAY
Notary Public
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.