Appendix — Chardon v. Fumero Soto

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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

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Appendix — Chardon v. Fumero Soto · 462 U.S. 650 | Frix