# Petition for Writ of Certiorari — Aponte Roque v. Kercado-Melendez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1044

## Text

Supreme Oourt, U.S,

SEG = Tt FILED
2 APR 15 1986
No. 87-____ _ JOSEP F. SPANIOL, JP.
IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

AWILDA APONTE ROQUE,
SECRETARY OF THE DEPARTMENT
OF EDUCATION OF THE
COMMONWEALTH OF PUERTO RICO,
Petitioner,
V.
IpclA M. KERCADO-MELENDEZ,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT

HECTOR RIVERA CRUZ
Secretary of Justice
Commonwealth of Puerto Rico

RAFAEL ORTIZ CARRION
Solicitor General
Commonwealth of Puerto Rico

MARCOS RAMIREZ LAVANDERO
Counsel of Record

RAMIREZ & RAMIREZ
Eleanor Roosevelt #117
Third Floor
Hato Rey, P.R. 00918
(809) 758-5660

ATTORNEYS FOR PETITIONER
April 15, 1988

aS eR MARU NRE NE OSSETIA RS E SSNTONE SS ITI RTE TAT
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

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ones

QUESTIONS PRESENTED

1. Whether the Younger-Huffman-Dayton absten-
tion doctrine requires the federal judiciary to abstain
from hearing a Section 1983 action challenging a state
administrative disciplinary proceeding under the
Teachers Misconduct Act initiated by Puerto Rico’s
Secretary of Education against the federal plaintiff,
even though the federal action only challenges the
State’s motivation in initiating the proceeding and not
the constitutionality of the Act itself.

2. Whether under Younger-Huffman as extended by
Dayton, an administrative proceeding initiated by the
state is rendered remedial and not coercive because
the federal plaintiff must take “‘affirmative steps’’ to
trigger the administrative review-mechanism provided
by statute.

PARTIES TO THE PROCEEDING BELOW

The respondent herein was the plaintiff before the
District Court and the plaintiff-appellee before the
Court of Appeals for the First Circuit. Respondent is
the party in interest to the relief afforded below.
Petitioner was the defendant before the District Court
for the District of Puerto Rico and defendant-appel-
lant before the Court of Appeals for the First Circuit.

iil

TABLE OF CONTENTS

Page
UIUNINOED HP UOIEIONTEED sc ccsccccccccsssssecescesnscccnscssecznscs i
PARTIES TO THE PROCEEDINGS BELOW. .............0000. il
aL sauumsendudehsiooceaons ill
I INU, scccicnnsccsccceseaacecenscnscvobonpenctss iv
Ce sssdaneniubenss l
RESET ee 2
ES aR 3
A. THE TEACHER MISCONDUCT ACT . 4
B. DISTRICT COURT PROCEEDINGS ..... 6

C. THE COURT OF APPEALS
RT 7
REASONS FOR GRANTING THE WRIT .............ccccee000e 8

I. The Court of Appeals’ determination that ab-
stention is inappropriate because the federal
action challenges the motivation of the Sec-
retary, but not the constitutionality of the
state proceeding, misconstrues Supreme
Court authority and conflicts with other court
LASERS NRE NSE STE ae 10

II. The Court of Appeals’ determination that ab-
stention is inappropriate because the state
administrative proceeding was remedial and
the federal plaintiff did not have to exhaust
the integrated administrative judicial review
mechanism provided by statute is contrary
to Dayton Christian Schools and in conflict
with other court of appeals ..............eeeeeeeees 17

III. The First Circuit panel opinion can pro-
foundly alter the proper relationship between
the states and the federal courts ............... 25

SE Sl ea 25

iv

TABLE OF AUTHORITIES

CASES Page
Cameron v. Johnson, 390 U.S. 611 (1968) ............. 14
Cleveland Board of Education v. Loudermill, 470

Weil EE IIIT shccivsnisslochevededeonsnibasnmenadinnmaninaaas 7
Dombrowski v. Pfister, 380 U.S. 479 (1965) .......... 14,15

Fresh International Corp. v. Agricultural Labor Re-
lations Board, 805 F.2d 1353 (9th Cir,

UNIT ‘ss cisniccguisesipacsaseueianundedabsecabdunsnnendiubuapiciaudnion 13
Gibson v. Berryhill, 411 U.S. 564 (1973) ............... 9,16
Huffman v. Pursue, 420 U.S. 592 (1975) .... 9,12,14,21-24
Juidice v. Vail, 480 U.S. 327 (1977) .............cccceees 9,21
Kercado-Melendez v. Aponte Roque, 829 F.2d 255

CE I Ree aiccwnusieismemsenasindiandasianstiies 1,10,11,14,22
Kugler v. Helfant, 421 U.S. 117 (1975) .............00 16
Moore v. Sims, 442 U.S. 413 (1979) ............cccscceees 9,12

Ohio Civil Rights Commission v. Dayton Christian
Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718

RII cdsdinnsishiseatiinsdeccenkuaciemaapinaniaiasnainias 9,17,21,24,25
Patsy v. Board of Regents of the State of Florida,

SOF Ue. Se Tee etter 7,8,17,23,29
Peery v. Brakke, 826 F.2d 740 (8th Cir. 1987) ..... 24
Pennzoil v. Texaco, __U.S. __, 107 S.Ct. 1519

UNE siuaidoreicnecatscstcinignnesiscalieamienaaaanatnasniiaienekis 9,11
Perez v. Ledesma, 401 U.S. 822 (1975) ................. 14,15
Rizzo v. Goode, 423 U.S. 362 (1976) ..................006 12
Ronwin v. Dunham, 818 F.2d 675 (8th Cir.

SEE sincicaehondccos tint tabi otia celina iekhaccaeiasahion 24
Steffel v. Thompson, 415 U.S. 452 (1974) .............. 22
Thomas v. Texas State Board of Examiners, 809

Fe GE GO, Ce. WUD nvssniaicenstsetasncdsasincvess 24
Trainor v. Hernandez, 431 U.S. 434 (1977) ........ 9,11,12

Velez Ramirez v. Romero Barcelo, 112 P.R. Dec.
Fe TE kscesicsctscn asa ceeadamanae 10

Table of Authorities Continued
: Page

Williams v. Red Bank Board of Education, 662 F.2d
DOR GIRS Gi Fee cncntsisessinscosniinacineicciones 9,12,13
Wooley v. Maynard, 430 U.S. 705 (1977) .............. 22,23
Younger v. Harris, 401 U.S. 37 (1971) ........... 8, passim

CONSTITUTION AND STATUTES

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P.R. Laws Ann. tit. 3, §§ 1-1567 (1982) ....0...... 3
PR. Laws Amm. tit. 3, § 16) CUBR) cccsccsccccccssnccses, 3
Pm. Lawes Asm. 00. B, © 168 (OUR) cvsvcccsccccccrsrescs 3

Law No. 115, of June 30, 1965, P.R. Laws Ann.
CHE. TR, BD PAO CI ihtvescciccccninssinccncsenre

P.R. Laws Ann. tit. 18, § 249e (1974)
if eer Pl UM UD OR Ror
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P.R. Laws Ann. tit. 18, § 274d (stinahasavnnsoisiasinevesiasa
Ae Le UE Ce OR GS . RRRENURrpR ae
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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

AWILDA APONTE ROQUE,
SECRETARY OF THE DEPARTMENT
OF EDUCATION OF THE
COMMONWEALTH OF PUERTO RICO
Petitioner,
Vv.

Ipcia M. KERCADO-MELENDEZ
Respondent.

PETITION FOR WRIT OF CERTIORARI

The petitioner Awilda Aponte Roque, Secretary of
the Department of Public Instruction of the Com-
monwealth of Puerto Rico, respectfully prays that a
writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
First Circuit entered on September 27, 1987, as
amended by order of November 18, 1987.

OPINION BELOW

The opinion of the Court of Appeals, as amended,
is reported as Kercado-Meléndez v. Aponte Roque, 829
F.2d 255 (1st Cir. 1987), and appears as Appendix A
hereto. The opinion of the District Court is reported

at 841 F.Supp. 1326 (D.C.P.R. 1986), and appears as
Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the First
Circuit was entered on September 27, 1987. A timely
petition for rehearing en banc was denied on Novem-
ber 18, 1987, and this petition for certiorari was filed
within the April 16, 1988 deadline allowed by this
Court’s Order Extending Time to File Petition for
Certiorari of February 4, 1988. This Court’s jurisdic-
tion is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Petitioner (hereinafter ‘‘the Secretary’) is the Sec-
retary of the Department of Public Instruction (DPI)
of the Commonwealth of Puerto Rico. She was ap-
pointed to said position in January 1985 by the newly
elected Governor Rafael Hernandez Coldén, after the
Popular Democratic Party (PDP) deposed the New
Progressive Party (NPP) in the election held on No-
vember 1984. At all relevant times, respondent (here-
inafter ‘‘Kercado”) was the school superintendent of
the Dorado School district. She is a member of the
NPP.

As the new head of the DPI, the Secretary initiated
public policy changes in the Department that signif-
icantly altered the past practice of the previous NPP
administration. These public policy changes were in-
strumented through directives from the Secretary, be
them circular letters or memoranda, addressed to the

ee

pertinent DIP officials.! As school superintendent of
the Dorado school district, Kercado is obliged by law
to follow the directives of the Secretary.? The genesis
of this case is predicated on an administrative com-
plaint issued by the Secretary against Kercado, due
to her failure to follow the Secretary’s directives.

On May 20, 1985, the Secretary issued a memoran-
dum entitled ‘Teaching Personnel Outside of their
Regular Function’’, ordering all school superintend-
ents to assign all teaching personnel in administrative:
functions to teaching positions at schools. Kercado
failed to obey this directive by keeping teaching per-
sonnel in administrative functions in her office.

‘In Puerto Rico, contrary to the continental United States,
all of the primary functions of the state have been entrusted to
the state government by the Constitution of Puerto Rico. See,
P.R. Const. Art. IV; P.R. Laws Ann. tit. 3, §§ 1-1567 (1982).
The Secretary of the DPI is constitutionally and statutorily as-
signed the function of administrating all public education for the
island of Puerto Rico. P.R. Const. Art. IV, § 6; P.R. Laws Ann.
tit. 3, § 141 (1982). The educational system is divided into 100
school districts, roughly equivalent to a political municipality,
except in the cities, which usually consist of various school dis
tricts. Each school district is run by a school superintendent,
normally a tenured teacher who can only be removed for cause,
pursuant to P.R. Laws Ann. tit. 18, §§ 274-2740 (1974). The
school districts, in turn, fall under one of eight administrative
regions, each headed by a regional director. The regional director
is the direct supervisor of each of the school superintendents in
his region.

*P.R. Laws Ann. tit. 3, § 142 (1982) provides: ‘“‘The Secretary
of Education ... shall appoint, as occasion may require, an
officer for each school district to be known as the Supervisor
of Schools, and these supervisors of schools shall in all respect
be subject to the orders of the Secretary of Education.” The
terms school supervisor and school superintendent are inter-
changeable.

On July 10, 1985, the Secretary issued a circular
letter which established the procedure for selecting
teacher assistants. It provided that in the absence of
consensus at the district level, the DPI regional di-
rector shall determine the personnel to be appointed.
Kercado refused to follow the regional director’s de-
cision with respect to the appointment of fourteen
(14) teacher assistants.

On December 9, 1985, the Secretary served on
respondent a complaint pursuant to the Teachers Mis-
conduct Act, charging her with insubordination con-
sisting in failure to follow the directives and other
acts of obstruction.®

A. THE TEACHERS MISCONDUCT ACT.

Through Law No. 115, of June 30, 1965, the leg-
islature of the Commonwealth of Puerto Rico enacted
legislation providing for the removal for cause of the
DPI’s tenured teachers. P.R. Laws Ann. tit. 18, §§
274-2740 (1974).4 The Act enumerates the causes that
warrant the cancellation of a teaching certificate and
separation from teaching service. These causes in-
clude insubordination, negligence in the discharge of
duties and conduct prejudicial to the good name of
the Puerto Rico public education system. P.R. Laws
Ann. tit. 18, § 274.

3In addition to violating the directives previously discussed,
the complaint charged Kercado with altering the functions and
impeding the normal functioning of the Dorado assistant school
superintendent. See Appendix D.

4See Appendix F for the text of the statute. For want of a
better name, the district court designated the statute as the
Teachers Misconduct Act. Appendix B, p. 29a. For purposes of
this petition, said appellation is adopted.

The Act provides that if the Secretary, upon in-
vestigation, is satisfied that a teacher has incurred in
any of the causes warranting disciplinary action, she
“shall serve on the teacher an order of suspension
or cancellation of certificate jointly with a complaint
specifying the charges which are ground for such an
action.”” P.R. Laws Ann. tit. 18, § 274a. The order
shall notify the affected teacher of her right to appeal
to the DPI Board of Appeals, within 10 days of no-
tification. Jd. If not appealed within 10 days, the or-
der shall become the suspension or cancellation order
of the Secretary, and shall be final and conclusive.
P.R. Laws Ann. tit. 18, § 274b.

If, however, the complaint is appealed to the Board
of Appeals, the writ of appeal ‘“‘shall stay the effects
of the order of cancellation or suspension of certifi-
cate.’”’ P.R. Laws Ann. tit 18, §274d.° In such. cases,
the Secretary may, pending the appeal, suspend the
teacher from office and salary, but only for a period
of 90 days, unless a maximum extension of 90 days
is approved by the Board of Appeals. Jd. In cases of
Board approved extension, however, the teacher re-
sumes drawing her salary. P.R. Laws Ann. tit. 18, §
274n. If the Board of Appeals has not decided within
180 days, the aggrieved teacher shall be reinstated
in her position, pending a final decision by the Board.

5In its opinion, the Court of Appeals stated that the appeal
of the order to the Board would “‘stay the effects of the can-
cellation order, substituting in its stead a suspension of Ker-
cado’s employment and salary pending the outcome of her
appeal.’ 829 F.2d at 257. This is incorrect. Pursuant to the
statute, while the stay is automatic, the suspension is discre-
tionary.

The DPI Board of Appeals is an independent, sep-
arate entity required and empowered to give a full
evidentiary hearing.* The Board’s ‘“‘decision may af-
firm, revoke or modify the order of the Secretary.”’
P.R. Laws Ann. tit. 18, § 274i. The Act provides for
a speedy review process by the Board. P.R. Laws
Ann. tit. 18, §§ 274f, 274i. A party adversely affected
by the Board’s decision has 30 days to seek judicial
review before the Superior Court of Puerto Rico,
which shall apply the rules for review of administra-
tive bodies. P.R. Laws Ann. tit. 18, § 274e.

B. DISTRICT COURT PROCEEDINGS

Instead of filing an administrative appeal, Kercado
amended her original complaint and sought injunctive
relief and damages under 42 U.S.C. § 1983.’ The

6 The Board is comprised of three persons appointed by the
Governor with the advice and consent of the Senate for a term
of four years. Its presiding officer must be a lawyer or bachelor
of law. Its members serve without pay and cannot be employees
of the public education system. The Board must, at the parties’
request, compel the appearance of witnesses and the production
of documents; a refusal to obey can be met by a court order
subject to contempt. P.R. Laws Ann. tit. 18, § 274e. The hearing
itself must be public before at least two members and concurred
in by at least two. P.R. Laws Ann. tit. 18, § 274g. Both sides
can present evidence and have a right to counsel, to cross-
examination of witnesses, and to being supplied beforehand with
the names and addresses of the opposition’s witnesses and copies
of their statements. P.R. Laws Ann. tit. 18, § 274h.

7 The original administrative complaint against respondent is-
sued on October 28, 1985. Respondent sought review of the
charges before the DPI Board of Appeals. Subsequently, how-
ever, respondent filed a section 1983 complaint in the federal
district court and withdrew her petition for review before the
Board of Appeals. Her federal action sought a Temporary Re-

Secretary requested the district court to abstain from
entertaining Kercado’s action for injunctive relief,
claiming that by not availing herself of the admin-
istrative-judicial review of the charges provided by the
Act, Kercado was collaterally seeking to annul a state
proceeding initiated to vindicate the interests embod-
ied in the Teachers Misconduct Act. The district court
rejected the Secretary’s contention, holding that there
was no administrative hearing pending at the time of
litigation and that Patsy v. Board of Regents of the
State of Florida, 457 U.S. 499 (1982), does not require
exhaustion of administrative and state remedies. The
court, after a bench trial, found that the charges,
even if facially valid, had been instituted against
respondent because of her political affiliation and did
not warrant her discharge. Accordingly, the district
court ordered the Secretary to reinstate Kercado as
school superintendent, and ordered back pay, $15,000
in actual damages and $10,000 in punitive damages.

C. THE COURT OF APPEALS DECISION
The Court of Appeals, in a 2 to 1 decision, affirmed

the district court’s grant of reinstatement, backpay
and damages. In particular, a majority of the panel

straining Order seeking to enjoin her removal on the basis of
petitioner’s failure to provide a pretermination hearing required
by Cleveland Board of Education v. Loudermiil, 470 U.S. 532
(1985). As a result, the Secretary withdrew the initial complaint,
afforded respondent a pretermination hearing in accordance with
Loudermill, and on December 9, 1985, issued another admin-
istrative complaint, essentially containing the same charges as
the October 28, 1985 complaint. On January 15, 1986, respondent
amended her federal complaint, which remained only as to dam-
ages, to include a new cause of action in order to seek injunctive
relief and damages under Section 1983. It is the injunctive relief
therein requested, from which the Secretary seeks relief.

rejected the Secretary’s argument that the district
court should have abstained. The court recognizes the
applicability of Younger abstention to state adminis-
trative proceedings, but found abstention inappro-
priate because: (a) the federal action did not challenge
directly the constitutionality of the Teachers Miscon-
duct Act; (b) the available administrative appeal was
remedial rather than coercive; and (c) Patsy does not
require exhaustion of the integrated administrative-
judicial review mechanism provided by the Act.

REASONS FOR GRANTING THE WRIT

The Court of Appeals decision raises important con-
stitutional questions because it misconstrues Supreme
Court precedent and overlooks the overriding con-
cerns of federalism, comity and equity that control
whenever the state initiates an administrative pro-
ceeding to vindicate important state interests embod-
ied in the state law. The exercise of jurisdiction in
this case is particularly intrusive given that the stat-
ute involved expressly provides for an integrated ad-
ministrative-judicial review mechanism geared to
insure to the affected party a full, fair and speedy
consideration of the charges issued against her. In
effect, the Court of Appeals’ decision marks a sub-
stantial transfer of public personnel administration
from the state to the federal courts, and eviscerates
the state’s interest in the enforcement of statutes
aimed at maintaining the integrity and responsiveness
of the state’s educational systems. This result is hos-
tile to the common underlying purpose of all absten-
tion doctrines: to ensure the proper relationship
between the states and the federal judiciary.

In extending abstention doctrine from a state crim-
inal proceedings to civil proceedings and finally to

state administrative proceedings, the Court has re-
quired the presence of two factors in order to insure
consonance between legitimate state and federal in-
terests; these are:

(a) That the state civil or administrative proceeding
be initiated to vindicate an important state in-
terest.

(b) That the state proceeding afford the federal
plaintiff an opportunity to hear her constitu-
tional claims.

Ohio Civil Rights Commission v. Dayton Christian
Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 2723 (1986);
See Younger v. Harris, 401 U.S. 37 (1971); Gibson v.
Berryhill, 411 U.S. 564 (1973); Huffman v. Pursue,
420 U.S. 592 (1975); Juidice v. Vail, 430 U.S. 327
(1977); Trainor v. Herndndez, 481 U.S. 434 (1977);
Moore v. Sims, 442 U.S. 413 (1979); Middlesex County
Ethics Committee v. Garden State Bar Ass’n, 457 U.S.
423 (1982); Pennzoil v. Texaco, __ U.S. __, 107 S.Ct.
1519 (1987).

It is undisputed that both these factors are present
in this case. Certainly, enforcement of the Teachers
Misconduct Act which is the only disciplinary mech-
anism for removing a tenured teacher for cause, em-
bodies an important state interest in the integrity of
the Commonwealth’s educational system. Williams v.
Red Bank Board of Education, 662 F.2d 1008, 1019
(3d. Cir. 1983). Similarly, it is clear that the admin-
istrative mechanism provided by statute allows
plaintiff to raise her constitutional claims, since the
DPI’s statute itself proscribes discrimination on the
basis of political affiliation and the appeals board is
empowered to hear the constitutional claims. Thus,

10

P.R. Laws Ann. tit. 18, § 249e (1974) expressly pro-
hibits the schoo! authorities from discriminating
against a teacher because of her political affiliation.
See Appendix E. In Vélez Ramirez v. Romero Barcel,
112 P.R. Dec. 716, 728 (1982), the Commonwealth
Supreme Court makes clear that an administrative
body charged pursuant to statute with hearing the
just cause removal charges against a public official is
empowered to hear all constitutional claims, including
those of unconstitutional motive. See Appendix C.

I. The Court of Appeals’ determination that abstention
is inappropriate because the federal action challenges
the motivation of the Secretary, but not the consti-
tutionality of the state proceeding, misconstrues
Supreme Court authority and conflicts with other
court of appeals.

In its decision, nonetheless, the Court of Appeals
determined that abstention was inappropriate because
the relief sought by the federal plaintiff was not
‘seeking to mount a broad, constitutional attack on
the legitimacy of the state proceeding or their un-
derlying statutory predicate.”” 829 F.2d at 261. Ac-
cording to the court, abstention is appropriate only
if “‘the state proceeding is itself the wrong which the
federal plaintiff seeks to correct via injunctive relief
under section 1983.’’ 829 F.2d at 260. Abstention,
however, is unsuitable whenever ‘“‘a teacher alleges
that her dismissal was motivated by an unconstitu-
tional purpose.” 829 F.2d at 261.

The Court of Appeals’ decision renders Younger
abstention inapplicable whenever a federal section 1983
action chailenging the enforcement of a state law al-
leges an unconstitutional motive, such as political, re-
ligious or racial discrimination proscribed by the first

11

amendment or the equal protection clause of the four-
teenth amendment. Such an exegesis of abstention -
doctrine constitutes an alarming misreading of this
Court’s authority because it overlooks the overriding
substantive interest of the state in the enforcement
of its laws, and because it redefines the bad faith
exception to Younger abstention in a manner contrary
to this Court’s pronouncements and inimical to the
values of federalism and comity informing its appli-
cation.

There is no Supreme Court authority indicating that
a broad constitutional attack on the state proceeding
or its underlying statutory predicate is a sine qua non
of Younger abstention. On the contrary, the focus of
this Court’s precedent, as well as that of other ap-
pellate circuits, has been on the impairment that fed-
eral intervention imposes on the substantive interest
of the state as a sovereign. Thus, this Court’s atten-
tion has been on whether the state interest in the
underlying proceeding ‘‘goes beyond its interest as
adjudicator of wholly private disputes.” Pennzoil, 107
S.Ct. at 1527, n. 2. See Trainor, 431 U.S. at 444.

The Court of Appeals’ discernment that the ‘‘state
interest at stake was severely diminished,” 829 F.2d
at 261, because the federal action attacked the un-
constitutional motivation of the state official enforcing
the Act and not the constitutionality of the Act itself,
miscalculates the substantive interest of the Com-
monwealth in the enforcement of the Teachers Mis-
conduct Act. The Commonwealth shares as important
an interest in the enforcement of state law as in the
constitutional pristineness of the Act. The attack on
the state enforcement proceedings, due to an alleged
unconstitutional motive, do not any more “automat-

12

ically vitiate the adequacy of those proceedings for
purposes of Younger-Huffman line of cases,’’ Moore,
442 U.S. at 427, n. 10, than do attacks on the con-
stitutionality of the underlying statute. Furthermore,
it is clear that abstention concerns cloak ‘‘those in
charge of an executive branch of an agency or local
government”. Rizzo v. Goode, 423 U.S. 362, 380
(1976). Thus, contrary to the Court of Appeals’ as-
sertion, abstention concerns are most implicated
where the federal action seeks to enjoin ‘‘state offi-
cials from enforcing state statutes or implementing
public policies.”” Trainor, 431 U.S. at 444, n.8.

In the case at bar, it is the enforcement of the
Teachers Misconduct Act by the Secretary as a rep-
resentative of the state in its sovereign capacity which
comprises the nucleus of both the state administrative
proceeding and the federal action. It is the action
initiated by the Secretary which the federal plaintiff
seeks to annul. The Court of Appeals distinction be-
tween a federal action premised on an unconstitu-
tional motivation as opposed to an unconstitutional
statute misapprehends the identical interest impaired
by federal intervention: in both circumstances, inter-
ference with the state proceeding ‘‘prevents the state
not only from effectuating its substantive policies, but
also from continuing to perform the separate function
of providing a forum competent to vindicate any con-
stitutional objections interposed against those poli-
cies.’’ Huffman, 420 U.S. 604.

The First Circuit’s decision with respect to this
matter conflicts with the Third Circuit and the Ninth
Circuit. Williams v. Red Bank Board of Education,
662 F.2d 1008 (8rd Cir. 1981), a case on point, con-
cerns a federal action to enjoin tenure termination

13

proceedings initiated by a New Jersey school board
against a federal plaintiff. There, the plaintiff con-
tended that the state’s interest in the prosecution of
tenure charges against her was not implicated where
her federal injunctive request attacked the manner in
which the tenure system was being applied to her,
rather than attacking the system as facially invalid.
The Third Circuit rejected this argument, holding that
“an injunction by a federal court commanding state
and local officials to cease action on a tenure charge
against a public school teacher cannot have other than
a disruptive impact on the state’s ability to ensure a
competent and qualified body of teachers”. 662 F.2d
at 1018, n.10.

The Ninth Circuit seems to have reached similar
determination in Fresh International Corp. v. Agri-
cultural Labor Relations Board, 805 F.2d 1353 (9th
Cir, 1986). Said case involved a preemption challenge
to state officials’ enforcement of the California Ag-
ricultural Labor Relations Act. There the Ninth Cir-
cuit noted:

Of course, Younger is not necessarily in-
applicable because a state’s processes are not
being challenged. Rather, when a plaintiff
does not challenge state proceeding, the fo-
cus shift to an examination of the state’s
interest in the law sought to be enforced.
Dayton makes this obvious.

805 F.2d at 1360, n.9.

In addition to its erroneous calibration of the state
interest involved whenever a federal plaintiff claims
that a state official is enforcing a state law due to
an unconstitutional motive, the First Circuit’s focus

14

on said motive errs in another fundamental manner:
namely, it unbridles the bad faith exception to
Younger abstention of all its equitable restraints.
While the Court of Appeal does not recognize it as
such, its vision of an alleged unconstitutional motive
as the trigger for federal equitable intervention is
tantamount to the bad faith exception to abstention
recognized by this Court in the Younger-Huffman line
of cases. There, this Court left room for federal in-
tervention with state initiated proceedings where
there is a showing that the state proceeding “‘is mo-
tivated by a desire to harass or is conducted in bad
faith,” Huffman, 420 U.S. at 611, or where there are
other “extraordinary circumstances in which the nec-
essary irreparable injury can be shown.” Younger, 401
U.S. at 53. The Court of Appeal’s pronouncement that
‘‘a teacher who alleges that her dismissal was moti-
vated by an unconstitutional purpose need not pursue
her administrative remedies,’ 829 F.2d at 261, is es-
sentially indistinguishable from the bad faith excep-
tion described by this Court.

This disguised exercise of the bad faith exception
by the First Circuit is contrary to the criteria estab-
lished for its application by this Court. For this Court
has indicated that bad faith exception is to be invoked
only in extraordinary circumstances where it can be
objectively shown that the state officials have har-
assed the federal plaintiff with multiple unsuccessful
prosecutions or threats of prosecution without hope of
a conviction, and where the state proceeding provides
no adequate mechanism for resolution of the consti-
tutional issues. Dombrowski v. Pfister, 380 U.S. 479
(1965); Cameron v. Johnson, 390 U.S. 611 (1968); Pérez
v. Ledesma, 401 U.S. 822 (1975); Younger, 401 U.S.

—

15

at 48-50. For it is clear that the ‘‘cost, anxiety, and
inconvenience of having to defend against a single
criminal prosecution” is not the type of injury that
warrants federal interference. Younger, 401 U.S. at
46.

Dombrowski exemplifies the extraordinary circum-
stances calling for the application of the bad faith
exception. There, plaintiffs brought a section 1983
action against Louisiana’s law enforcement officials
alleging that their prosecution under the state’s law
was part of a plan of persecution and harassment
because of their civil rights activities on behalf of
blacks. The Court found bad faith where the state
officials had brought an unsuccessful prosecution and
threatened further prosecutions, and there was no
prospect that the state proceedings would ‘‘provide
satisfactory resolution of constitutional issues.’’ Dom-
browski, 380 U.S. at 487. Similarly, in Pérez v. Le-
desma, 401 U.S. 82, 91 (1975), this Court explained:
‘only in cases of proven harassment or prosecutions
undertaken by state officials in bad faith without hope
of obtaining a valid conviction and perhaps in other
extraordinary circumstances where irreparable injury
can be shown’ will federal intervention be appropri-
ate.

This case evidences no facts or other extraordinary
circumstances warranting application of the bad faith
doctrine.? While the complaint alleges bad faith, nei-

®It should be noted that in the Court of Appeals’ original
opinion of September 27, 1987, the court found, in the alter-
native, that abstention would have been improper because ‘‘Ker-
cado’s complaint alleged facts sufficient to support the application
of the bad faith exception to the Younger doctrine.” Appendix

16

ther it nor the district court proceeding demonstrate
a scheme of harassment evidenced by multiple charges
or proceedings initiated by the Secretary against Ker-
cado without hope of prevailing on the merits. On
the contrary, the district court’s opinion acknowledges
that the conduct attributed to Kercado in the com-
plaint did occur, but that it did not warrant or re-
quired the cancellation of her teacher certificates.
Furthermore, there is no indication that the Board
of Appeals proceeding would have been institutionally
biased or otherwise incapable of addressing Kercado’s
constitutional claim thereby creating a situation of
immediate irreparable harm calling for federal inter-
vention. Cf. Gibson v. Berryhill, 411 U.S. 564 (1978);
Kugler v. Helfant, 421 U.S. 117, 124-125 (1975).

In essence, by holding that an allegation of uncon-
stitutional motive dispenses the federal judiciary from
compliance with Younger abstention, the Court of
Appeals introduces through the back door the bad
faith exception, but divested of the requirements
enunciated by this Court for its application. By re-
ducing the bad faith exception to mere talismanic al-
legations of unconstitutional motive in the complaint,
the court transmutes the exception into the rule. This
facile application of the exception defeats the fun-

G, p. 123a. Revealingly, the Court equated bad faith with
respondent’s allegation that the state proceedings ‘‘was moti-
vated by the Secretary’s dissatisfaction for her political affilia-
tion.’’ Pursuant to the Secretary’s ‘‘Petition for Rehearing,” on
November 18, 1987 the court issued two orders, one denying the
petition for a rehearing en banc, and the other deleting footnote
No. 5. Appendix H. By focusing, however, on the unconstitu-
tional motive factor the Court of Appeals continues to apply,
under a different legal nomenclature, the bad faith exception in
a manner contrary to Younger abstention doctrine.

oO

17

damental values of federalism, comity and equity in-
forming Younger abstention and converts the federal
courts, via the federal action, into super-personnel
boards sitting in the place and substituting the judg-
ment of the administrative-judicial bodies established
by the state for this purpose.® A result more offensive
to the “proper respect for state functions’’ contem-
plated by ‘Our Federalism’’, Younger, 401 U.S. at
44, is difficult to envision.

II. The Court of Appeals’ determination that abstention
is inappropriate because the state administrative
proceeding was remedial and the federal plaintiff
did not have to exhaust the integrated administra-
tive judicial review mechanism provided by statute
is contrary to Dayton Christian Schools and in con-
flict with other court of appeals.

The Court of Appeals held abstention inappropriate
because it found that the administrative proceeding
was not ongoing since it was remedial, rather than
coercive. Ohio Civil Rights Commission v. Dayton
Christian Schools, Inc., 106 S.Ct. 2718, 2723, n.2,
(1986). The majority opinion concluded that the
‘‘appeal’’ was remedial and controlled by Patsy be-

* The instant case is symptomatic of the super-personnel board
role to be played by the district courts under these circumstan-
ces. At trial, the district court examined the charges contained
in the complaint issued by the Secretary against Kercado, re-
viewed the evidence and testimony in support of such charges,
and appraised that under its assessment of state law, and con-
ceding the facial validity of the charges, they did not warrant
Kercado’s discharge. The assessment under the state law as to
the merit of the charges, and the district court’s substitution of
its judgment for that statutorily entrusted to the Board of
Appeals, is precisely the type of interference with and usurpation
of state functions that Younger abstention seeks to avoid.

ee

18

cause “‘the dismissed teacher must take affirmative
steps to initiate the appeal to the Board of Appeals’’,
and because Kercado ‘‘cannot be coerced into appear-
ing before the Board of Appeals, but is provided with
an administrative remedy should she choose to avail
herself of it.” (emphasis ours) 829 F.2d at 261. The
majority opinion also held that the proceeding was
remedial (i.e., there existed no pending state pro-
ceeding) because ‘‘the issuance of the dismissal ‘or-
der’, based on an unconstitutional motive, constituted
the legal wrong suffered by Kercado’’, while the
appeal to the Board was a remedy ‘“‘available to her’’.
Id.

Said analysis is erroneous. First, as the dissent ac-
curately points out, the panel misreads Common-
wealth law when it characterizes the ‘‘appeal”’
mechanism of the Teacher’s Misconduct Act as pro-
viding for a remedy distinct from the legal wrong.
Section 274b provides that ‘if not appealed within
the term of ten (10) days, the order shall become the
suspension or cancellation order of the Secretary and
it shall be final and conclusive.”’ P.R. Laws Ann. tit.
18, § 274b. Section 274d provides that “‘[t]he filing
of the writ of appeal ... shall stay the effects of the
order of cancellation or suspension of the certificate.”
P.R. Laws Ann. tit. 18, § 274d It is obvious that,
under Commonwealth law, there are orders and there
are orders. The ‘‘order’”’ that accompanies the charges
(the original ‘‘order’’), can be automatically stayed by
the affected teacher by the mere filing of an appeal.
In such case, the proceedings -including a full blown
hearing- are conducted before the Board of Appeals.
The ‘“‘order’’ becomes really an ‘order of the Sec-
retary’, only ‘‘if not appealed’, or when the Board

EES

19

makes a final determination. P.R. Laws Ann. tit. 18,
§ 274b. This is no different from any contested case
where the defendant must answer the charges either
accepting or denying them; and only upon defendant’s
denial of the charges are the full blown proceedings
triggered. The only peculiarity of Puerto Rico’s sta-
tutory scheme is that the manner in which the teacher
contests the charges is by filing an ‘‘appeal”’ instead
of an answer. The majority of the panel, therefore,
can conclude as it did, only by looking at the words
“order” and ‘“‘appeal’’ divorced from the real sub-
stance of the proceedings. That is why Judge Breyer’s
dissent astonishingly notes:

How can the majority find the plaintiff was
not in the midst of this procedure when she
brought her federal law suit? The majority
seems to do so only by artificially separating
the statute’s ‘‘sending-the-other’”’ provision
from the rest of the statute. The majority
reads the “‘sending-of-the-order’’ provision as
if it permitted the Commonwealth to dismiss
a teacher without a full-blown hearing simply
by sending the piece of paper called an “‘or-
der’’, as if the sending of that piece of paper
constituted the legal wrong and all the rest
provided by the statute were but a state rem-
edy. In any contested case, however, the
sending of the ‘order’ and the hearing on
‘“‘appeal’’ are steps within an integrated, sta-
tutory administrative scheme—a scheme sim-
ilar to those often used by states to dismiss
tenured teacher. Unless one viewed Puerto
Rico’s law as embodying an effort to dismiss
tenured teachers without hearing (which nei-

20

ther the statutory language nor common
sense suggested is so) this case fits squarely
within the Younger doctrine ... For these
reasons, it seems to me that the majority’s
view both misreads Puerto Rico’s law and,
in any event, runs contrary to relevant
Supreme Court authority.

829 F.2d at 267 (Breyer, J; dissenting).

Secondly, the holding that the administrative pro-
ceeding in this case is remedial rather than coercive
simply because the dismissed teacher must take “‘af-
firmative steps” to invoke said proceeding and there-
fore, ‘‘cannot be coerced into appearing before the
Board,” is clearly contrary to established Younger
abstention doctrine. The critical distinction between
‘coercive’ and “remedial’’ does not depend on
whether affirmative steps must be taken. A proceed-
ing is coercive if the state has initiated it against an
unwilling defendant exposed to the loss of a liberty
or property right for violation of a state statute. In
any such proceeding the defendant must act, he must
defend himself; but the fact that he must act or take
‘affirmative steps’ does not render the proceedings
remedial. Nor the fact that the defendant may if he
‘wishes, waive his rights, change the coercive nature
of the proceedings. Thus, in the same way as Kercado
cannot be “‘coerced into appearing before the Board’’,
a defendant cannot be coerced into answering the
charges in a complaint, or into appearing at a hearing
scheduled to hear the charges. In other words, the
defendant can never be coerced into defending him-
self, but the fact that he has such a choice certainly
does not render the proceeding remedial.

li iain,

21

Kercado in this case is in the same shoes as the
federal plaintiff in Juidice, who chose not to appear
at the contempt hearing; in Middlesex County, who
decided not to answer the disciplinary charges issued
against him; in Dayton, who sought to bail out of the
administrative proceeding; and in Huffman, who opted
not to utilize the state appellate remedies. All these
plaintiffs share in common the natural consequences
of jettisoning state proceeding: they voluntarily forfeit
the opportunity of contesting the charges and become
bounded by the determination issued against them.
Under these circumstances, Younger impedes that
they recur to the federal forum to collaterally chal-
lenge the state determination.

Third, even if the ‘“‘appeal’”’ to the Board of Appeals
is really an appeal, it is a review mechanism within
a highly integrated administrative proceeding which
also provides for judicial review in the Commonwealth
courts. This Court has held that in such cases the —
failure of a federal plaintiff to avail himself of an
opportunity for review forecloses the door to the fed-
eral courthouse. In Huffman, a judgment and per-
manent injunction issued by an inferior state court
had become final and unappealable and, therefore, the
plaintiff sought federal intervention contending there
was no longer a pending state court proceeding. This
Court rejected this contention, noting that federal in-
tervention prior to the exhaustion of appellate rem-
edies impaired the same concerns that Younger sought
to protect. The Court held, therefore, that a ‘‘nec-
essary concomitant of Younger’ is the need to ex-
haust state appellate procedures before seeking
federal injunctive relief. 420 U.S. at 608.

22

Huffman clearly indicates that once the state ini-
tiates the administrative proceeding to vindicate im-
portant state interests and it affords the federal
plaintiff an opportunity to raise his constitutional
claims, said proceeding is ‘‘pending’’ regardless of
whether the plaintiff utilizes or not the opportunity
to appeal charges or the adverse determination. Thus,
Huffman held that the term “pending proceeding”’
serves only to ‘‘distinguish state proceedings which
have already commenced from those which are merely
incipient or threatened’. 420 U.S. at 607.

The panel majority attempted to distinguish Huff-
man by pointing out that the exhaustion requirement
to Younger cases had been restricted by Wooley v.
Maynard, 430 U.S. 705, 710-11 (1977), to cases in
which the federal plaintiff attempts to use the federal
courts ‘‘to annul the results of a state trial.’’ The
panel majority then concluded that in this case Ker-
cado had ‘‘made no such effort.” 829 F. 2d at 262.
In Wooley, however, Huffman was held inapposite be-
cause the federal plaintiff sought only to preclude
further prosecution. The federal plaintiff therein had
already sustained convictions and served a sentence
of imprisonment for his prior offenses. He did not
seek ‘‘to have his record expunged or to annul any
collateral effects” of those convictions. 480 U.S. at
711. He sought ‘“‘only to be free from prosecutions
for future violations of the same statutes.’’ Jd. Thus,
Wooley is nothing but a restatement of a basic ele-
ment of the Younger doctrine which requires a pros-
ecution or proceeding to have been initiated prior to
the commencement of the federal action. Steffel v.
Thompson, 415 U.S. 452 (1974).

23

In this case, contrary to Wooley, Kercado’s only
concern is with the proceeding initiated by the Com-
monwealth pursuant to the Teachers Misconduct Act.
She is not seeking to enjoin future charges under such
Act but using the federal courts to annul the pro-
ceedings brought against her by the Secretary. She
is akin to the federal plaintiff in Huffman who sought
“federal post-trial intervention, in a fashion designed
to annul the results” of the state proceeding. Huff-
man, 420 U.S. at 609. The instant case fits squarely
within the import of Huffman and has no relation
whatsoever with Wooley.

The Secretary submits that the only definition of
“coerciveness” consistent with prior Supreme Court
authority is that of “‘coerciveness” understood as state
proceeding initiated against an unwilling defendant
exposed to the loss of a property or liberty right.
This definition is congruent with the distinction be-
tween a Younger and Patsy-like situation described in
Huffman, where this Court held that Section 1983
action alleging deprivation of federal rights “had
nothing to do” with the ‘‘deference to be accorded
state proceedings which have already been initiated
and which afford a competent tribunal for the reso-
lution of federal issues.’’ 420 U.S., at 609, n. 21. The
critical distinction between Younger abstention and
Patsy is that Patsy does not involve a state initiated
proceeding to vindicate a substantive interest of the
state. In Patsy an applicant for employment was re-
jected because of her race and sex. There was no
state proceeding initiated to vindicate state law. The
failure to hire in Patsy clearly was not effectuated
to advance a substantive state interest, and the state
did not act in its sovereign capacity. Thus, in Patsy

24

none of the abstention concerns are present and there
is no justification for the federal courts to stay their
hand. The situation is quite different in this case
where the Commonwealth has initiated a disciplinary
proceeding to protect the integrity of its educational
system. Patsy is clearly inapplicable.’

To conclude, the First Circuit has failed to apply
the clear principles of the Younger-Huffman-Dayton
abstention doctrine. The “affirmative step’ and
‘coerced into appearing”’ criteria for determining the
coercive or remedial nature of the proceedings is
clearly contrary to Younger and its progeny. Said
criteria eviscerates the letter and the spirit of this
Court’s abstention doctrine in cases in which the state
has initiated a proceeding to vindicate an important
state interest.

© The Fifth Circuit in Thomas v. Texas State Board of Ex-
aminers, 809 F.2d 453 (5th. Cir. 1987) seemingly coincides with
the First Circuit in holding that the mere availability of state
judicial review of state administrative proceedings does not
amount to the pendency of state proceedings for purposes of
Younger abstention. 807 F.2d at 456. On the other hand, albeit
without much analysis, the Eight Circuit has indicated in Peery
v. Brakke, 826 F.2d 740 (8th Cir. 1987), that Dayton Christian
Schools signals a “clear break’’ with past law enunciated in
Patsy, but refused to apply it retroactively. 826 F.2d at 745.
Similarly, in Ronwin v. Dunham, 818 F.2d 675 (8th Cir. 1987),
the Eight Circuit indicated that abstention is appropriate and
Dayton Christian Schools does not conflict with Patsy, so long
as the federal plaintiff is in a state proceeding initiated to vin-
dicate an important state interest and which provides an ade-
quate opportunity to raise constitutional claims. 818 F.2d at 677,
n.7.

25

III. The First Circuit panel opinion can profoundly alter
the proper relationship between the states and the fed-
eral courts.

The First Circuit opinion in this case will have a
profound impact on the relationship between the fed-
eral courts and the state’s administration of its per-
sonnel policies. Although the present case relates to
the Commonwealth’s administration of its educational
system, the impact of the First Circuit opinion is
much broader. It affects any proceeding initiated by
a state to discipline an employee for just cause. The
employee will be able to jettison himself out of the
state proceeding and into the federal court merely by
alleging an unconstitutional motive in the institution
of the charges, even where there is no suggestion
that the state administrative-judicial mechanism can-
not fairly adjudicate the employee’s constitutional
claims. Thus, the federal courts will be converted into
super-personnel boards in charge of adjudicating dis-
ciplinary proceedings against state employees for just
cause.

In sum, it seems evident that the First Circuit’s
decision impoverishing the Younger abstention doc-
trine raises an important constitutional question with
respect to the application of this Courts’ decision in
Dayton Christian School. This is a vital issue with
grave consequences to the integrity and independence
of functions that are properly left to the states to
perform. The existing conflict of circuits highlights
the need for this Court to presently address and clar-
ify the questions presented.

CONCLUSION

In light of the foregoing discussion, the Secretary
respectfully requests that this Court issue the Writ

26

of Certiorari in order to clarify the important ques-
tions presented for review.

In San Juan, Puerto Rico, this April 15, 1988.

Respectfully submitted,

HECTOR RIVERA CRUZ
Secretary of Justice
Commonwealth of Puerto Rico

RAFAEL ORTIZ CARRION
Solicitor General
Commonwealth of Puerto Rico

MARCOS RAMIREZ LAVANDERO
Counsel of Record

RAMIREZ & RAMIREZ
Eleanor Roosevelt #117
Third Floor

Hato Rey, P.R. 00918
Tel. (809) 758-5660

Attorneys for Petitioner

APPENDIX

APPENDIX A — Ipcia M. Kercado-Melendez v. Aponte
Roque, 829 F.2d 255 (1st Cir.
PEED. désconuthancinnbniinantadenbiaisdeniiananuesonans la

APPENDIX B — Ipcia M. Kercado-Melendez v. Aponte

- Roque, Civil No. 85-2261, Slip op.
(D.C. PR. August 12, 1986) ............. 28a

APPENDIX C — Walter Velez Ramirez v. Hon. Carlos

Romero Barcelo, 112 D.P.R. 716
ERIE sinceieciekianepbaniiniiainiiidenadstossansions 54a

APPENDIX D — Complaint of December 9, 1985, is-
sued by the Department of Public In-
struction of the Commonwealth of
I iii Eiiadtnialaninminniaanans 104a

APPENDIX E — P.R. Laws Ann. Tit. 18, §249e. ...... 1l4a
APPENDIX F -- P.R. Laws Ann. Tit. 18, §274-2740. 1l5a

APPENDIX G — Footnote 5 of original slip opinion de-
leted by Order of the Court of

Appeals on November 18, 1987 ....... 123a
APPENDIX H — Court of Appeals Orders of Novem-
SO Se, I ieiieccinieindensendcntsnneicinnccnnens 124a

APPENDIX I — Order of the Supreme Court of the
United States Extending Time for
Filing Petitition for Writ of
GRIT “aswadddabthénnupsnicnetncepsantiinniadeoe 127a

la

APPENDIX A

UNITED STATES COURT OF APPEALS,
FIRST CIRCUIT.

IpciA M. KERCADO-MELENDEX,
Plaintiff, Appellee,
Vv.

AWILDA APONTE-ROQUE, etc.,
Defendant, Appellant.

No. 86-1853
Heard May 7, 1987,

Decided Sept. 22, 1987.

Puerto Rican school superintendent brought § 1983 action
alleging she was fired from her position because of her
political affiliation. The United States District Court for
the District of Puerto Rico, 641 F.Supp. 1326, Hector M.
Laffitte, J., entered judgment for school superintendent
and appeal was taken. The Court of Appeals, Bownes,
Circuit Judge, held that: (1) availability of noncoercive ad-
ministrative appeal by which school superintendent could
have challenged her dismissal did not require district court
to abstain from entertaining superintendent’s § 1983 ac-
tion; (2) failure of Secretary of Department of Instruction
to give school superintendent notice of charges and op-
portunity to respond prior to dismissal violated due process
rights of superintendent; and (3) school superintendent in
Puerto Rico would not have been discharged but for her
political affiliation, in violation of her First Amendment
rights.

Affirmed and remanded.

Breyer, Circuit Judge, dissented and filed opinion.

Carlos Del Valle, with whom Hector Rivera Cruz, Secre-
tary of Justice, Ramirez & Ramirez and Marcos A. Ra-

2a

mirez Irrizarry, Hato Rey, P.R., were on brief, for
defendant, appellant.

Hector Gonzalez Lopez, with whom Hector Urgell Cue-
bas and Pedro Miranda Corranda, San Juan, P.R., were
on brief, for plaintiff, appellee.

Before BOWNES and BREYER, Circuit Judge, and
CAFFREY,* Senior District Judge.

BOWNES, Circuit Judge.

Defendant-appellant Awilda Aponte-Roque, Secretary of
the Department of Public Instruction (DPI) in Puerto Rico,
appeals a judgment entered against her in a section 1983
suit brought by plaintiff-appellee Ipcia M. Kercado-Melen-
dez. Kercado had alleged that she was fired from her
position as superintendent of the Dorado School District
because of her political affiliation with the Partido Nuevo
Progresista (PNP). The United States District Court for
the District of Puerto Rico, sitting without a jury, ordered
Kercado reinstated to her former position, and awarded
her over $37,000 in back pay and damages. This appeal
by Aponte followed.

I. BACKGROUND

Ipcia Kercado worked for the Department of Public In-
struction for eighteen years, rising through the ranks until
she attained the position of superintendent for the Dorado
School District. Kercado was well known in Dorado as a
prominent member of the Partido Nuevo Progresista, which
was deposed as Puerto Rico’s ruling party by the Partido
Popular Democratico (PPD) in the election of 1984. In
. January, 1985, Awilda Aponte-Roque, a PPD member, was
appointed Secretary of the DPI.

* Of the District of Massachusetts, sitting by designation.

3a a,

On October 28, 1985, Kercado received a complaint! from
the Secretary of Public Instruction cancelling her teaching
certificate and dismissing her as superintendent of the Dor-
ado School District. It charged Kercado with incompetence,
negligence, insubordination, and improper conduct. Ker-
cado was accused of keeping two teachers in administra-
tive positions during the month of August, 1985, when
they should have begun to resume their teaching duties.
It was also alleged that she improperly impeded the Dor-
ado district’s assistant superintendent, Hector Lopez Mal-
donado, from performing his duties. In addition, Kercado
was charged with failing to process fourteen teacher as-
sistant appointments.

The complaint informed Kercado that Aponte, in her
capacity as Secretary of the DPI, had decided to “‘per-
manently cancel your teacher certificate(s) which you hold
in order to teach in the public and private schools of the
Commonwealth of Puerto Rico and [to] dismiss you from
your post.’”’ The cancellation order which became effective
upon receipt by Kercado stated that, pursuant to Puerto
Rico law, she had ten days to appeal the order to the
Board of Appeals of the Public Education System. Such
an appeal would stay the effect of the cancellation order,
substituting in its stead a suspension of Kercado’s em-
ployment and salary pending the outcome of her appeal.
The order further stated that if Kercado did not appeal
the cancellation within ten days, it would become “final
and binding.”

On November 5, 1985, Kercado filed an appeal with the
Board of Appeals, which scheduled a hearing on the
charges for November 27. On November 7, Kercado in-
stituted an action in the United States District Court for
the District of Puerto Rico, claiming that her dismissal
was prompted by her affiliation with the PNP. Kercado
also asserted that she had been denied due process, be-

' The document is a combined notice and order entitled ‘‘Compiaint.”

4a

cause she had not been given an opportunity to respond
to the charges against her prior to the Secretary’s ter-
mination action. She sought either a temporary restraining
order or a preliminary injunction. The following day, No-
vember 8, Kercado withdrew her appeal from the Board
of Appeals.

After Kercado had filed her action in federal court, and
withdrawn her administrative appeal, the Secretary invited
her to appear at an informal hearing schedule for Novem-
ber 14, 1985. Kercado wrote a letter to the Secretary in
which she declined the invitation to appear at the informal
hearing. In the letter, she noted that a “‘show cause’
hearing was scheduled in federal court on November 18,
which would address the issue of whether the failure to
grant her a hearing before the issuance of the cancellation
order violated her due process rights. On November 18,
the Secretary dismissed ~'i charges against Kercado and
reinstated her as superintendent of the Dorado School Dis-
trict.

One week later, the Secretary tried again to dismiss
Kercado. On November 25, Kercado received a letter re-
questing her presence at an informal hearing on charges
against her. The hearing took place the following day,
November 26, before Elba Rodriguez Fuentes, Director of
the Legal Division at the DPI. Kercado was read the
charges against her and given the opportunity to respond.
No evidence or witnesses were presented by either side
at the hearing.

On December 9, Kercado was served with an order can-
celling her superintendent’s certificate and dismissing her
from employment with the DPI. The December 9 order
enumerated the same charges contained in the October 28
order, albeit in a more condensed form. The order notified
Kercado of her right to file and administrative appeal, and
informed her that a failure to file such an appeal within
ten days would render the order ‘‘final and binding.”’

o
Sanwa A ee

5a

Kercado declined to file an administrative appeal; in-
stead, she pressed her action in the federal court. She
amended her original complaint and sought injunctive relief
and damages under 41 U.S.C. § 1983. The district court
agreed with Kercado that she had been dismissed from
her position as superintendent because of her political af-
filiation with the PNP. The court found the charges
brought by the Secretary against Kercado to be without
merit. It noted further that, even accepting the facial va-
lidity of the Secretary’s allegations, they were not serious
enough ‘‘to warrant the discharge of an employee of
plaintiff's caliber who had been with the DPI for eighteen
years.”” (Emphasis in orignal.) The court also held that
Kercado had been deprived of her due process rights when
the Secretary dismissed her on October 28, 1985, without
granting her a pretermination hearing. Accordingly, the
district court ordered the Secretary to reinstate Kercado
as superintendent of the Dorado School District, 641
F.Supp. 1326. Kercado was awarded $12,074.50 in back
pay, $15,000 in actual damages and $10,000 in punitive
damages.

II. THE ISSUES

There are four issues on appeal. First, the Secretary
urges that the district court should have abstained from
hearing the case because Kercado could have pressed her
claims in the state administrative appeal that was available
to her. The Secretary points out that, had Kercado been
dissatisfied with the result in the administrative proceed-
ing, she could have appealed the decision to the common-
wealth courts of Puerto Rico. Second, Aponte submits that
the court erred in holding that Kercado’s due process rights
were violated, since she could have filed an administrative
appeal and received a hearing before her termination be-
came fully operative. Third, the Secretary also contends
that the district court erred in finding that Kercado had
been dismissed for political reasons. She argues that the

6a

charges brought against Kercado were substantive and le-
gitimate grounds for dismissal. Fourth, it is argued that
the district court erroneously granted Kercado compen-
satory and punitive damages. We consider each of these
contentions seriatim.

Abstention

The Secretary avers that the district court erred when
it failed to dismiss the case in accordance with the doctrine
established in Younger v. Harris, 401 U.S. 37, 91 S.Ct.
746, 27 L.Ed.2d 669 (1971). The federal plaintiff in
Younger, John Harris, Jr., was being prosecuted under a
state criminal synidicalism statute. He asked a three-judge
federal district court to enjoin state criminal proceedings
instituted against him, alleging that his prosecution would
immediately and irreparably injure his first amendment
rights. The three-judge court held that the criminal synd-
icalism statute was void due to vagueness and restrained
the state from further prosecution of Harris. The Supreme
Court reversed, holding that the district court should have
abstained from hearing Harris’ claim. The Court stated
that considerations of federalism and comity dictated that
federal court should refrain from deciding broad consti-
tutional challenges to the legitimacy of a state criminal
_ proceeding, provided that the state proceedings was Un-
dertaken in good faith and the federal plaintiff was given
an adequate opportunity to press his constitutional claims
in the state forum. Younger v. Harris, 401 U.S. at 43-53,
91 S.Ct. at 751-55.

Since Younger, the Supreme Court has invoked the ab-
stention doctrine to overturn federal court challenges to
the constsitutionality of pending state civil proceedings.
Penzoil Co. v. Texaco, Inc., _. U.S. ___ , 107 S.Ct. 1519,
95 L.Ed.2d 1 (1987); Middlesex Ethics Committee v. Garden
State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73
L.Ed.2d 116 (1982); Moore v. Sims, 442 U.S. 415, 99 S.Ct.
2371, 60 L.Ed.2d 994 (1979); Trainer v. Hernandez, 431

| achiral

at aE iA tists A SNE EM A BT Po A OK hie see ANE OBEY BIR Ss ME Ra Pk SO AEE Saag SONS 8 RA DE he ea lk a ee ane bak

Pe PRA a rea Se LP Oo AEP ha BS GAS TARAS 0

De SV OD ES MLD ROA VEEL TABS HORNE.

Ta

U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice
v. Vail, 480 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376
(1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct.
1200, 43 L.Ed.2d 482 (1975). Those cases featured federal
plaintiffs who had lodged broad constitutional attacks on
the legitimacy of state civil proceedings instituted against
them. In each case, the federal court was asked to enjoin
a contemporaneous state civil proceeding pending against
the federal plaintiff; the relief sought by the federal
plaintiff was directed specifically at the pending state pro-
ceeding. Here, Kercado had not requested the federal dis-
trict court to enjoin any state civil proceeding pending
against her. Such a prayer would have been futile because
the Secretary had already completed dismissal proceedings
against Kercado; by its own terms, the order of dismissal
became effective upon its receipt by Kercado. Accordingly,
there was no proceedings for the district court to enjoin.

The Secretary urges, however, that because Kercado
could have appealed the dismissal to the DPI Board of
Appeals, the district court should have abstained and
thereby forced Kercado to litigate her constitutional claims
in a Puerto Rico forum. In effect, the Secretary argues
that Kercado should have been permitted to bring a section
1983 suit in federal court because of the availability of an
appeal within the Puerto Rico administrative and judicial
apparatus. The Supreme Court, however, has held ex-
pressly that section 1983 claimants need not avail them-
selves of state judicial and administrative remedies before
going to federal court. Patsy v. Florida Board of Regents,
457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982);
Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209,
1222-23, 39 L.Ed.2d 505 (1974). The federal plaintiff in
Patsy alleged that she had been denied employment op-
portunities by Florida International University on the basis
of race and sex. Rather than pursue available state ad-
ministrative remedies, she chose to file a section 1983
claim in federal court. The Supreme Court rejected ‘‘the

8a

argument that a section 1983 action should be dismissed
where the plaintiff has not exhausted state administrative
remedies.” Patsy v. Florida Board of Regents, 457 U.S.
at 500, 102 S.Ct. at 2559.

The Secretary relies heavily on the Court’s decision in
Ohio Civil Rights Commission v. Dayton Christian Schools,
477 U.S. 619, 106 8.Ct. 2718, 91 L.Ed.2d 512 (1986), which
held that the principles of Younger abstention apply to
pending state administrative, as well as state judicial, pro-
ceedings. The Ohio Civil Rights Commission instituted a
state administrative proceeding against Dayton Christian
Schools, alleging that it had dismissed a teacher because
of her sex and her efforts to assert her legal rights. Day-
ton responded by asserting that the first amendment pro-
hibited the Commission from exercising authority because
the dismissal of the teacher had been undertaken pursuant
to internal guidelines grounded in sincerely held religious
beliefs to which all of its employees subscribed. While the
state administrative proceeding was pending, Dayton
Christian Schools filed a section 1983 action in federal
court claiming that the administrative proceeding insti-
tuted by the Ohio Civil Rights Commission violated its first
amendment right to free exercise of religion.

The Supreme Court ruled that the interests of comity
and federalism rendered abstention appropriate under such
circumstances. It held that Ohio had an important interest
in regulating schools, even private religious schools. The
Court also noted that Dayton Christian Schools would have
an opportunity to raise its constitutional claims in the state
administrative proceeding. Justice Rehnquist, writing for
the majority, stressed that the Court’s decision in Dayton
Christian Schools did not conflict with its earlier holding
in Patsy:?

? The Patsy holding was reaffirmed recently by the Court in Wright
v. Roanoke Redevelopment and Housing Authority, ___ U.S._, 107

7s PAO Oe

Seg eee Ore Pe

Dries MOT Pa GA A cian! ate da BAN

9a

The application of the Younger principle to pending
state administrative proceedings is fully consistent
with Patsy v. Florida Board of Regents, 457 U.S. 496,
102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), which holds
that litigants need not exhaust their administrative
remedies prior to bringing a § 1983 suit in federal
court. Cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 607-
11, 95 S.Ct. 1200 1209-12, 43 L.Ed.2d 482 (1975).
Unlike Patsy, the administrative proceedings here are
coercive rather than remedial, began before any sub-
stantial advancement in the federal action took place,
and involve an important state interest.

Dayton Christian Schools, 106 S.Ct. at 2723 n. 2.

The crucial distinction between Dayton Christian Schools
and Patsy is that in Patsy the state proceeding was an
option available to the federal plaintiff on her own initi-
ative to redress a wrong inflicted by the state. In Dayton
Christian Schools and the other absentention cases noted
above, the federal plaintiffs sought to enjoin a pending
state proceeding which they did not initiate, but in which
their presence was mandatory. Here, unlike Dayton Chris-
tian Schools, the administrative proceeding is remedial
rather than coercive. The administrative appeal process
could be triggered only on Kercado’s initiative if she wished
to pursue her remedies within the Puerto Rico adminis-
trative framework. Patsy holds that she was not required
to do so.

S.Ct. 766, 773 93 L.Ed.2d 781 (1987) (‘‘the existence of a state ad-
ministrative remedy does not ordinarily foreclose resort to § 1983”’).
This circuit has on a number of occasions expressly reaffirmed the
holding in Patsy that § 1983 plaintiffs need not exhaust state remedies
prior to filing suit in federal court. Exeter-West Greenwich Regional
School District v. Pontarelli, 788 F.2d 47, 52 (ist Cir.1986); Urbani-
zadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993, 999 (1st Cir.1983);
Developmental Disabilities Advocacy v. Melton, 689 F.2d 281, 286 n.
15 (1st Cir.1982); Developmental Disabilities Advocacy v. Melton, 689
F.2d 281. 286 n. 15 (1st Cir.1982).

10a

There is another important difference between Patsy
and the absention cases. In Dayton Christian Schools and
similar cases, the state proceeding is itself the wrong which
the federal plaintiff seeks to correct via injunctive relief
under section 1983. Those cases involved claims by
plaintiffs that constitutional rights would be violated by
virtue of the operation of the state proceedings. Comity
and federalism concerns are at their highest in such cases
since the legitimacy of both the state proceeding and its
underlying statutory predicate are at stake. Abstention is
appropriate in such instances because, absent bad faith or
an adequate opportunity to raise the constitutional chal-
lenge in the state forum, state courts should have the first
opportunity to construe the constitutionality of their own
proceedings. “‘Minimal respect for the state processes, of
course, precludes any presumption that the state courts
will not safeguard federal constitutional rights.” Middlesex
Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. at
431, 102 S.Ct. at 2521.

An inquiry into the appropriateness of abstention is war-
ranted if the relief sought by the federal plaintiff is ad-
dressed directly to an ongoing state proceeding. Moore v.
Sims, 442 U.S. at 431, 99 S.Ct. at 2381. In Patsy and
cases like it,’ abstention was unnecessary because the fed-

°E.g., Praprotnik v. City of St. Louis, 798 F.2d 1168, 1172-73 & n.
4 (8th Cir.1986) (district court was not required to abstain from case
brought by a city employee who alleged he was laid off for exercising
his first amendment rights; fact that federal plaintiff had initiated an
appeal to the civil service commission did not mandate abstention since
he was not required to exhaust his state administrative remedies prior
to filing the federal suit), cert. granted, __. U.S. ____ , 107 S.Ct. 871,
93 L.Ed.2d 826 (1987); Clark v. Yosemite Community College Dist., 785
F.2d 781, 790 (9th Cir.1986) (federal plaintiff who alleged his teaching
duties were interfered with because of the exercise of his first amend-
ment rights need not exhaust his state administrative remedies); Stana

v. School Dist. of City of Pittsburgh, 775 F.2d 122, 129-30 (8rd Cir.1985) .

(public school teacher denied employment opportunities need not ex-
haust state remedies); Brantley v. Surles, 718 F.2d 1354, 1358-60 (5th

ee

he ae

lla

eral plaintiffs did not allege injury arising from, or seek
relief directed to, an ongoing state proceeding. Instead,
the federal plaintiff claimed actual injury arising from ac-
tion undertaken and completed by state actors. Thus, the
state interest at stake was severely diminished because
the federal plaintiffs were not seeking to mount a broad,
constitutional attack on the legitimacy of the state pro-
ceedings or their underlying statutory predicate.

The dissent asserts that we can conclude that there is
no challenge to an ongoing state proceeding only by “ar-
tificially separating’”’ the “‘notice’’ which Kercado received
on December 9 from the administrative remedy which was
available to her. We note first that the document which
Kercado received on December 9 was not simply a “‘no-
tice,” but was also an order cancelling her teacher’s cer-
tificate and dismissing her from employment. The dissent’s
assertion that the dismissal order would take “effect only
after the Board of Appeals of the Public Education System
holds a full public hearing on the record’’ is flatly con-
tradicted by the language of the order itself. It states:
“The present Order shall become effective upon notifica-
tion and receipt of the same by the accused.”’ The issuance
of the dismissal order, based on an unconstitutional motive,
constituted the legal wrong suffered by Kercado. Kercado’s
rights were triggered at the moment the allegedly wrong-
ful dismissal became effective. We have made no “artifi-
cial” separation here; we have simply separated the alleged
wrong inflicted on Kercado from the remedies available to
her.

The dissent errs by suggesting that there must be a
hearing by the Board of Appeals before the dismissal order
becomes final and binding; there is no such requirement.
P.R.Laws Ann. tit. 18, § 274b. Review by the Board of
Appeals is couched, by the language of the statute itself,

Cir. 1983) (public school cafeteria worker discharged for exercising her
constitutional rights need not exhaust state remedies.

12a

as a remedy available to a teacher who is dissatisfied with
a dismissal order: “If not satisfied with the order, the
teacher thereby aggrieved may file a writ of appeal with
the Board of Appeals. .. .”” P.R. Laws Ann. tit, 18, § 274c
(emphasis added). The dissent’s description of the admin-
istrative appeal scheme omits a crucial fact: the dismissed
teacher must take affirmative steps to initiate the appeal
to the Board of Appeals. She cannot be coerced into ap-
pearing before the Board of Appeals, but is provided with
an administrative remedy should she choose to avail herself
of it. Undoubtedly, the administrative appeal scheme here
is perfectly adequate for handling the vast majority of
teacher dismissals, which ordinarily do not involve federal
constitutional claims. But a teacher who alleges that her
dismissal was motivated by an unconstitutional purpose
need not pursue her administrative remedies within the
Commonwealth system, but may proceed directly to federal
court to press her claims. This is precisely the holding of
Patsy.

Despite the Court’s clear holding in Patsy,:the dissent
contends that the District Court of Puerto Rico should not
have heard her claim until she had pursued her adminis-
trative remedy. This fails to recognize that there is a sig-
nificant difference between a civil rights plaintiff who seeks
to use the federal courts to stop or nullify an ongoing
state proceeding in which she is a defendant, and a civil
rights plaintiff who has an option to initiate a state pro-
ceeding to remedy a constitutional wrong perpetrated by
a state actor. In the former case, absention is appropriate;
in the latter, the Patsy rule prevails.

The dissent notes that the Court in Huffman v. Pursue,
Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975),
stated that “a necessary concomitant of Younger is that
a party ... must exhaust his state appellate remedies be-
fore seeking relief in the District Court.’’ Subsequently,
the Court restricted the reach of this language, noting
specifically that it applies only when a federal plaintiff

4
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:
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:
4
3
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—— ES ee

13a

seeks to avoid state judicial appeals and, instead, use the
federal courts ‘‘to annul the results of a state trial.’’ Wooley
v. Manyard, 480 U.S. 705, 710-11, 97 S.Ct. 1428, 1433,
51 L.Ed.2d 752 (1977). Here, of course, the federal plaintiff
has made no such effort. Both Huffman and Pennzoil v.
Texaco, __. U.S. ___ , 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987),
also cited by the dissent, hold that federal plaintiffs ag-
grieved by the results of a state trial must pursue their
state judicial appeals before going to federal court. The
instant case, like Patsy, involves a federal plaintiff ag-
grieved by an allegedly unconstitutional deprivation of em-
ployment by state officials. The Court has imposed no
requirement that she pursue her administrative remedies
in such circumstances.‘

We believe that this matter is controlled by the prin-
ciples outlined in Patsy. The instant case is not an ap-
propriate occasion for abstention. The thrust of Kercado’s
claim challenges the basis of the dismissal action under-
taken and completed by the Secretary. Kercado could have
sought to remedy this allegedly wrongful act in a state
administrative proceeding, but was not required by law to
do so. She also claimed that the Secretary deprived her
of due process by not granting her a pretermination hear-
ing prior to issuing the letter of dismissal. Such a claim
does not implicate absention concerns since it does not
constitute a challenge to a pending state proceeding. The
Secretary had completed her action against Kercado who,
in turn, alleged that the substance and the procedural
effectuation of that completed action violated the Consti-
tution. Because Kercado’s claim did not involve a challenge
to the legitimacy of a pending state proceeding, we reject

‘The other lower court cases cited by the dissent are inapposite.
They involve challenges by federal plaintiffs to ongoing coercive state
proceedings initiated against them. The relief sought in those cases
runs directly against the proceedings themselves. We have already noted
that abstention is entirely appropriate in such circumstances. Such cir-
cumstances do not, however, prevail here.

—

l4a

the Secretary’s contention that the lower court should have
abstained.

Procedural Due Process

The Secretary disputes the district court’s conclusion
that Kercado’s due process rights were violated when she
was deprived of a pretermination hearing prior to receiv-
ing the dismissal order of October 28, 1985. Kercado’s due
process claim depends on her having had a property in-
terest in her employment.® Cleveland Board of Education
v. Loudermill, 470 U.S. 582, 538, 105 S.Ct. 1487, 1491,
84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S.
564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972).
Property interests are not created by the Constitution, but
are rooted in an independent source such as state law.
Cleveland Board of Education v. Loudermill, 470 U.S. at
538, 105 S.Ct. at 1491. Board of Regents v. Roth, 408 U.S.
at 577, 92 S.Ct. at 2708-10. The Secretary admits that a
school superintendent is a career employee under Puerto
Rico law. 3 L.P.R.A §§ 1849-52 (1978). Puerto Rico law
clearly gave Kercado a property interest in her position;
her status as a “‘career’’ employee permitted her to be
fired only for “good cause.” 3 L.P.R.A. §§ 1336 (1978).

Since Kercado had a property interest in her employ-
ment, the relevant constitutional question concerns what
process is due her. The Supreme Court has stated:

* The Secretary does not argue that by reinstating Kercado on No-
vember 18, 1985, the injury caused by the alleged deprivation on Oc-
tober 28 was somehow cured or rendered moot. Kercado’s claim for
emotional an? mental distress arising from the alleged October due
process violation survives irrespective of the subsequent reinstatement.
Cf. Carey v. Piphus, 435 U.S. 247, 263-64, 98 S.Ct. 1042, 1052-53, 55
L.Ed.2d 252 (1978).

Kercado also alleged in her complaint that the pretermination hear-
ing granted her prior to the December 9, 1985, dismissal was consti-
tutionally inadequate. The district court did not decide this issue, and
we have no occasion to do so here.

ania elaine

15a

An essential principle of due process is that a dep-
rivation of life, liberty, or property ‘‘be preceded by
notice and opportunity for a hearing appropriate to
the nature of the case.”” Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 3138, 70 S.Ct. 652,
656-57, 94 L.Ed. 865 (1950). We have described ‘“‘the
root requirement” of the Due Process Clause as being
“that an individual be given an opportunity for a hear-
ing before he is deprived of any significant property
interest in his employment.” Boddie v. Connecticut,
401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113
(1971) (emphasis in original); see Bell v. Burson, 402
U.S. 585, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90
(1971). This principle requires ‘“‘some kind of a hear-
iny”’ prior to the discharge of an employee who has
a constitutionally protected interest in his employ-
ment. Board of Regents v. Roth, 408 U.S. at 569-70,
92 S.Ct. at 2705; Perry v. Silnderman, 408 U.S. 593,
599, 92 S.Ct. 2694, 2698-99, 33 L.Ed.2d 570 (1972).

Cleveland Board of Education v. Loudermill, 470 U.S. at
542, 105 S.Ct. at 1493.

The Secretary does not dispute that Kercado was en-
titled to a pretermination hearing prior to the first effort
to dismiss her in October 1985. It is argued, however, that
the administrative appeal which Kercado could have pur-
sued was itself a pretermination hearing. The Secretary
points out that the filing of an appeal by Kercado to the
Board of Appeals would have suspended the effect ‘of the
dismissal order. She contends, therefore, that the availa-
bility of an administrative appeal provided Kercado with
a pretermination hearing since the dismissal order would
not become fully effective until after a final decision by
the Board of Appeals.

We reject this argument. The dismissal order received
on October 28 informed Kercado that the Secretary had
acted to ‘permanently cancel your teacher certificate(s)

16a

... and... dismiss you from your post.” The order stated
that it became “effective upon the service and receipt”’ of
it by Kercado. The plain meaning of these words is that
Kercado’s discharge took effect on her receipt of the order
on October 28. That the binding effect of such an order
would be suspended upon the filing of an “‘appeal,”’ does
not transform that ‘“‘appeal’’ into a pretermination hear-
ing. As the Eighth Circuit stated in the case of Schultz
v. Baumgart, 738 F.2d 231 (8th Cir.1984):

(If Schultz was indeed fired in violation of his due
process rights, the availability of post-deprivation
grievance procedures or a board hearing would not
have cured the violation. Schultz was entitled to notice
and a meaningful opportunity to respond before he
was terminated. If he was terminated without those
protections, the constitutional deprivation was then
complete. Schultz need not have exhausted other state
remedies before bringing his section 1983 claim.

738 F.2d at 237 (emphasis in original.)

Kercado’s opportunity to appeal the Secretary’s order
after being informed of the action is constitutionally in-
adequate; due process requires that she be given notice of
the charges and an opportunity to respond before the action
is taken. Cleveland Board of Education v. Loudermill, 470
U.S. at 546, 105 S.Ct. at 1496. We recognize that the
Secretary was not obliged to conduct a full evidentiary
hearing prior to dismissing Kerdaco. Jd. at 545, 105 S.Ct.
at 1495; Moody v. Town of Weymouth, 805 F.2d 30, 33
(1st Cir.1986). But Kercado was not given notice of the
charges and any opportunity to respond prior to the Sec-
retary’s action on October 28. We affirm the district court’s

* This is especially true here because the filing of the appeal would
still adversely affect Kercado’s rights; her employment and pay would
be suspended until the Board’s final decision.

17a

holding that her procedural due process rights were vio-
lated.

The Motives Behind Kercado’s
Dismissal

The first amendment prohibits a government agency
from dismissing public employees based on their political
affiliation unless membership is an appropriate require-
ment for a particular position. Branti v. Frankel, 445 U.S.
507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns,
427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The
parties agree that political affiliation is not a proper qual-
ification for a school superintendent position.

The Secretary challenges the district court’s conclusion
that Kercado was dismissed for political purposes. At trial,
Kercado bore the initial burden of demonstrating that her
political affiliation was a substantial or motivating factor
underlying the Secretary’s decision to discharge her. Mt.
Healthy City School District v. Doyle, 429 U.S. 274, 285-
87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977); Rosaly
v. Ignacio, 593 F.2d 145, 148-49 (1st Cir.1979). Once that
threshold showing had been met, the Secretary was obliged
to demonstrate that Kercado would have been dismissed
irrespective of her membership in the PNP. We cannot
uphold the verdict unless the trial court correctly found
that she would not have been dismissed ‘“‘but for’ her
political affiliation with the PNP. Mt. Healthy City School
District v. Doyle, 429 U.S. at 287, 97 S.Ct. at 576; Rosaly
v. Ignacio, 593 F.2d at 149. The district court made ex-
tensive findings of fact with respect to events leading up
to Kereado’s dismissal. These factual findings must be ac-
cepted unless we are “left with a definite and firm con-
viction that a mistake has been committed.’’ Anderson v.
Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511,
84 L.2d.2d 518 (1985); Scarpa v. Murphy, 806 F.2d 326,
329 (ist Cir. 1986).

~ 18a

The district court ruled that Kercado carried her initial
burden of proving that her political affiliation was a sub-
stantial factor motivating her dismissal. Proof of such an
improper motive may be shown via circumstantial evi-
dence. Rosaly v. Ignacio, 593 F.2d at 149. The trial judge
was aware of the highly charged political atmosphere in
Puerto Rico following the PPD’s election victory over the
PNP in 1984. He highlighted Kercado’s long, active and
visible membership in the PNP. The evidence showed that
the DPI Secretary and Undersecretary, the DPI Regional
Director for the region which included the Dorado district,
and the Regional Director’s deputy, all were members of
the PPD. The trial judge noted that one of the charges
filed against Kercado was based solely on a statement by
assistant superintendent Hector Lopez Maldonado, a well
known PPD member who had once run for mayor of Dor-
ado. The evidence revealed that Kercado and Lopez had
an extremely antagonistic relationship. The trial court held
that the Secretary’s willingness to appoint Lopez as as-
sistant superintendent—despite widespread knowledge of
his hostile relationship with Kercado and stronger support
from the appointments committee for two other candi-
dates—, and her refusal to investigate complaints that Lo-
pez’ conduct, evidenced her willingness to _ politicize
personnel decisions. Finally, the trial court noted various
instances in which the DPI officials investigating Kercado’s
conduct failed to elicit Kercado’s version of the events
underlying the charges against her. The court surmised
that the investigators’ conduct indicated that they were
more interested in building a case against Kercado to sup-
port her dismissal than in actually assessing the merits of
the charges against her. We agree with the district court
that these circumstances, when taken together, support a
finding that Kercado’s political affiliation was a substantial
factor motivating her dismissal.

After making this threshold determination, the trial
court then focused on whether Kercado would have been

te

19a

discharged ‘“‘but for” her political affiliation with the PNP.
The court noted thai uu. her eighteen years as a DPI em-
ployee, Kercado had never been reprimanded for her job
performance, but instead had been ‘‘steadily rewarded for
her work with job prornotions.”’ The court then undertook
an evaluation of the merits of the four charges brought
by the Secretary against Kercado.

The first charge levied against Kercado alleged that she
failed to process fourteen teacher assistant appointments,
in contravention of the order of Leida Cintron, the DPI
Regional Director for Bayamon. The committee assigned
to appoint teacher assistants in Dorado met on August 20,
1985, but was able to agree on only three candidates. The
district court found that the failure to select the other
eleven candidates occurred in part because the Regional
Director’s deputy, Maria Cordova, refused to accept the
committee’s recommendations. The committee’s inability to
reach a consensus meant that Cintron herself would choose
the remaining teacher assistants. On October 4, 1985, six
weeks after the August meeting, Cintron sent Kercado a
list of the additional eleven appointees. The Secretary avers
that Kercado’s failure to process the appointments within
three days constituted an act of insubordination. The dis-
trict court’s analysis of the evidence on this point is un-
assailable. The court failed

to see how defendant could honestly believe that
plaintiff should have realized the urgency of the sit-
uation and processed the aides immediately when it
took the Bayamon Regional Director, herself, over six
weeks to make the selection—from August 20, 1985
when the committee to select the aides met and no
consensus was reached, until October 4 when she sent
plaintiff a letter with her choices for the appoint-
ments. Plaintiff claims she received the letter October
11, 1985 and she was dismissed October 28, 1985.
This left her less than three weeks to process the
appointments. Given the fact that the Regional Di-

20a

rector never gave plaintiff a time limit to make the
appointments and given the situation in plaintiff’s of-
fice—that she was short-handed and it was the be-
ginning of a school year—all facts of which defendant
was aware, we cannot find that defendant was sincere
in believing plaintiff's conduct was a purposeful re-
fusal to follow the directives of her superior or an
overt act of insubordination worthy of dismissal.

The second and third charges brought against Kercado
concerned her decision to keep two teachers working in
the superintendent’s office during August, 1985, after thay
had been reinstated to their regular teaching positions.
The Secretary averred that such conduct was insubordi-
nate, since it defied a DPI directive ordering that all per-
sonnel be located in the work unit to which they were
assigned. An amendment to the directive provided that
personnel could be reaes.gned from their permanent po-
sitions in order to take care of “special situations that
may arise in a school or school district.’”” Kercado main-
tained that her temporary use of the two teachers was
prompted by the ‘‘special situation” of severe understaff-
ing in her office. It is undisputed that Kercado’s office
was short on personnel during the summer of 1985. In-
deed, on July 2, 1985, Kercado sent a letter to the Gov-
ernor complaining that fourteen positions in her office
remained vacant. She stated in the letter that she had
unsuccessfully complained about the shortage through the
proper channels. A copy of this letter was also sent to
the Secretary. The Secretary does not deny that Kercado’s
office was suffering personnel shortages, but submits that
“understaffing does not justify hierarchical disobediendce.”

The evidence shows that Kercado received permission
to use the two teachers from their respective principals.
There was no evidence that the temporary reassignment
of the teachers disrupted the schools in which they worked.
The trial judge found that temporary reassignments for

path ds Lay we al

2la

“special situations” were expressly permitted by the June
29 amendment to the DPI directive on teacher reassign-
ment. There was evidence that it has been a common
practice to temporarily use teachers to perform adminis-
trative tasks in the superintendent’s office. Moreover, nei-
ther the DPI directive or reassignments, nor its June
amendment, specify particular procedures to be followed
in order to temporarily use a teacher to meet the special
needs of the district. The district court, therefore, con-
cluded that with respect to charges two and three filed
against Kercado there was no evidence “to indicate a pur-
poseful act of insubordination by plaintiff which would war-
rant a dismissal.”’

The fourth charge against Kercado involved her dealings
with assistant superintendent Hector Lopez Maldonado. As
mentioned earlier, it was evident that there was consid-
erable friction between Lopez and Kercado dating back
long before he was assigned to work with her in the same
office. Nevertheless, on September 19, 1985, slightly more
than a month before Kercado was dismissed, the Secretary
ignored the recommendation of the appointments commit-
tee and assigned Lopez to the position of assistant su-
perintendent.

The Secretary charged Kercado with altering the duties
of the assistant superintendent, thereby disrupting the
smooth functioning of the Dorado office. Kercado claimed
that Lopez refused to perform his assignments and caused
problems for the staff in the office. There was ample evi-
dence submitted by Kercado documenting complaints lev-
ied by Dorado district personnel against Lopez. In essence,
this fourth charge involved a credibility contest between
Lopez and Kercado; each testified of harassment and an-
tagonism from the other; each accused the other of inhib-
iting the efficient operation of the Dorado superintendent’s
office; and there was evidence that political motives en-
gendered the hostility they displayed toward one another.
“(F]indings based on witness credibility are lodged firmly

|

22a

in the province of the trial court and we are loathe to
disturb them absent a compelling showing of error.’
Scarpa v. Murphy, 806 F.2d at 328; Anderson v. Bessemer
City, 470 U.S. at 575, 105 S.Ct. at 1512-13. The trial judge
accepted Kercado’s assertion that Lopez’s abusive and un-
cooperative behavior forced her to relieve him of some of
his duties. The court characterized the Secretary’s charge
that Kercado refused to give Lopez his proper assign-
ments, as the “weakest” of all the allegations brought
against her. Indeed, the trial judge stated that “‘it is not
an unfounded conclusion that the Secretary, knowing the
antagonism between plaintiff and Lopez, appointed Lopez
as Assistant Superintendent in order to harass the
plaintiff.”

We see no reason to disturb any of the factual findings
made by the district court. The Secretary, in effect, has
sought to reargue to this court the merits of the charges
it originally brought against Kercado. The trial judge’s
assessment of the merits of those charges is entitled to
considerable deference. See Jimenez-Fuentes v. Torres-Gaz-
tambide, 807 F.2d 236, 238-39 (1st Cir.1986) (en banc),
cert. denied, __ U.S. __ , 107 S.Ct. 1888, 95 L.Ed.2d 496
(1987); De Choudens v. Government Development Bank, 801
F.2d 5, 7 (1st Cir.1986) (en banc), cert. denied, —— U.S.
, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). We agree with
the district court that, even conceding the facial validity
of the charges against Kercado, they are not so serious
as to warrant the discharge of a capable eighteen-year
career employee. The district court correctly concluded
that, when the merits of these charges are considered, it
is evident that they provide “little support for [the Sec-
retary’s] claim that [Kercado’s] conduct was insubordinate
requiring the termination of her employment with DPI.”’
Accordingly, we affirm the district court’s determination
that Kercado would not have been dismissed ‘‘but for’ her
political affiliation with the PNP.

ae a

23a

Damages

The Secretary challenges the district court’s award of
compensatory and punitive damages. Kercado proved that
she had been dismissed from her job for political reasons
and had been deprived of her procedural due process rights.
The district court reinstated Kercado and awarded her
$12,074.50 in back pay. Based on our reading of the record
and the briefs, this appears to be in error. The court
apparently computed its back pay award from the date of
plaintiff's dismissal, October 28, 1985. Appellants claim,
however, that Kercado was paid through December 9, 1985,
and she does not deny this. The court also granted Ker-
cado $15,000 to compensate for the pain and suffering
caused by the deprivation of her constitutional rights. Com-
pensatory damages for mental and emotional distress are
recoverable for violations of rights protected by section
1983. Memphis Community School Dist. v. Stachura, 477°
U.S. 299, 106 S.Ct. 2537, 2542-48, 91 L.Ed.2d 249 (1986);
Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 1052-
53, 55 L.Ed.2d 252 (1978). When reviewing a challenge
to the basis of an award for compensatory damages, ‘‘we
rely heavily on the judgment of the trial court, who has
had the benefit of hearing all of the evidence and observing
the demeanor of the witness.” Clark v. Taylor, 710 F.2d
4, 13 (1st Cir. 1983). Kercado testified of the emotional
and mental distress caused by her abrupt dismissal on
October 28 and by the Secretary’s second, and more suc-
cessful, effort to discharge her in December. We find the
district court’s award of $15,000 for compensatory dam-
ages reasonable under the circumstances.’

7 The court below did not specify how much of these compensatory
damages stemmed from the deprivation of her procedural due process
rights, and how much stemmed from the improper dismissal. The
Supreme Court has stated that a federal plaintiff alleging a procedural
due process violation must “‘convince-the trier of fact that he actually
suffered distress because of the denial of the due process itself.’’Carey

24a

The trial judge also awarded Kerdaco $10,000 in puni-
tive damages. The court concluded that the Secretary was
“callously indifferent to plaintiff's federally protected
rights,” thus warranting the imposition of punitive dam-
ages. Smith v. Wade, 461 U.S. 30,56, 103 S.Ct. 1625, 1640,
75 L.Ed.2d 632 (1983); Clark v. Taylor, 710 F.2d at 14.
The Secretary’s conduct, as found by the district court,
demonstrated a steadfast intent to discharge Kercado, ir-
respective of her constitutional rights or the actual merits
of the charges brought against her. The award of punitive
damages was therefore appropriate, and we do not find
it excessive.

Affirmed and remanded for a recomputation of the back
pay award. Costs awarded to appellee.

BREYER, Circuit Judge (dissenting).

I do not disagree with the majority about the basic
principles of federal law that apply to this case. On the
one hand, a person who claims that someone has violated
his civil rights may bring suit in federal court under 42
U.S.C. § 1983 without exhausting remedies that state law
makes available. See Patsy v. Board of Regents, 457 U.S.
496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). On the other
hand, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971), and its progeny held that if a state
has already begun a state judicial or administrative pro-
ceeding against a person, that person may not proceed in
federal court, even with a § 1983 suit, if that suit risks
interfering with important state interests and if the federal
plaintiff can raise constitutional challenges in the state

v. Piphus, 435 U.S. at 263, 98 S.Ct. at 1052. Here, Kercado testified
that she suffered distress ever since the Secretary’s action on October
28, when her procedural due process rights were violated. She also
testified of the distress she suffered due to the actual loss of her job.
We do not think the failure to identify the portion of compensatory
damages arising from each claim to be of consequence under the cir-
cumstances of this case.

PPE ee Tee ee ye ee

25a

proceedings. Middlesex County Ethics Committee v. Garden
State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515,
2521, 73 _L.Ed.2d 116 (1982) (setting out basic test for
invoking Younger-type abstention); see Ohio Civil Rights
Commission v. Dayton Christian Schools, 477 U.S. 619,
106 S.Ct. 2718, 2728, 91 L.Ed.2d 512 (1986) (extending
the Younger doctrine, in the context of a § 1983 action,
to state administrative proceedings).

I disagree with the majority, however, about the appli-
cation of those principles to this case. I think the plaintiff
was, when she brought her federal suit, very much in the
midst of Commonwealth administrative proceedings. In the
Commonwealth, as in many states, local authorities cannot
dismiss a tenured teacher without fairly elaborate admin-
istrative proceedings that involve notice of charges, a full-
blown administrative hearing, and either an administrative
appeal, judicial review, or both. P.R. Laws Ann. tit. 18,
§§ 274-2740; see, e.g., Cal. Educ. Code §§ 44932-44945;
N.J. Stat. Ann. §§ 18A:6-10 to -27; Wash.Rev. Code §§
28A.70.160-.170. Puerto Rico’s statute provides that to
“cancel” or “‘suspend”’ a tenured teacher’s educational cer-
tificate, the ‘Secretary of Education ... shall serve on
the teacher an order of suspension or cancellation ...
jointty with a complaint specifying the charges.”” P.R. Laws
Ann. tit. 18. §§ 274, 274a. The order “‘shall be final’’ after
ten days only if the teacher does not ‘appeal’ from it.
P.R. Laws Ann. tit. 18, § 274b. With a few possible ex-
ceptions not here relevant, the order (regardless of what
it says) legally takes effect only after the Board of Appeals
of the Public Education System holds a full public hearing
on the record, at which the teacher may be represented
by counsel, present evidence, and cross-examine the wit-
nesses presented by the education authorities. P.R. Laws
Ann. tit. 18, §§ 274d-274h. If the Board decides against
the teacher, he may obtain judicial review in the Com-
monwealth courts. P.R. Laws Ann. tit. 18, § 274l.

26a

How can the majority find that the plaintiff was not in
the midst of this procedure when she brought her federal
law suit? The majority seems to do so only by artificially
separating the statute’s “‘sending-the-order” provision from
the rest of the statute. The majority reads the ‘‘sending-
of-the-order” provision as if it permitted the Common-
wealth to dismiss a teacher without a full-blown hearing
simply by sending the piece of paper called an “‘order’’,
as if the sending of that piece of paper constituted the
legal wrong and all the rest provided by the statute were
but a state remedy. In any contested case, however, the
sending of the “order” and the hearing on ‘appeal’ are
steps within an integrated, statutory administrative
scheme—a scheme similar to those often used by states to
dismiss tenured teachers. Unless one viewed Puerto Rico’s
law as embodying an effort to dismiss tenured teachers
without a hearing (which neither the statutory language
nor common sense suggest is so) this case fits squarely
within the Younger doctrine. Regardless, even if one calls
the hearing stage an administrative “appeal” from the
sending of the “‘order,’’ relevant Supreme Court precedent
would still seem to require the plaintiff to take such an
appeal before bringing her § 1983 action in federal court.
Pennzoil v. Texaco, __ U.S. __ , 107 S.Ct. 1519, 1527 &
n. 13, 95 L.Ed.2d 1 (1987) (holding in the context of a §
1983 suit that the availability of a judicial appeal renders
a proceeding “pending” for purposes of Younger-type ab-
stention); Huffman v. Pursue, Ltd., 420 U.S. 592, 607-09
& n. 21, 95 S.Ct. 1200, 1211 & n. 21, 43 L.Ed.2d 482
(1975) (holding that ‘‘a necessary concomitant of Younger
is that a party ... must exhaust his state appellate rem-
edies before seeking relief in the District Court’’ and not-
ing that according such deference to already-initiated state
proceedings is consistent with a general no-exhaustion doc-
trine); see Patsy v. Board of Regents, 457 U.S. at 518-19,
102 S.Ct. at 2568-69 (White, J., concurring in part) (noting
that the Court’s holding in Patsy “‘is also fully consistent

27a

with [the Court’s] decisions that a defendant in a civil or
administrative enforcement proceeding may not enjoin and
sidetrack that proceeding by resorting to a § 1983 action
in federal court’’ (citing Huffman)); see also Malachowski
v. City of Keene, 787 F.2d 704, 708 (1st Cir.) (holding that
a § 1983 plaintiff must first take available state appeals),
cert. denied, __ U.S. __, 107 S.Ct. 107, 938 L.Ed.2d 56
(1986); Coruzzi v. New Jersey, 705 F.2d 688, 690 (3d
Cir.1983) (similar); Carter v. Maryland Commission on
Medical Discipline, 639 F.Supp. 542, 546 (D.Md. 1986)
(similar). For these reasons, it seems to me the majority’s
view both misreads Puerto Rico’s law and, in any event,
runs contrary to relevant Supreme Court authority.

28a

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO

CIVIL NO. 85-2261 AL

IpciA M. KERCADO MELENDEZ,
Plaintiff,

V.

AWILDA APONTE ROQUE, .
Defendant.

OPINION AND ORDER

Plaintiff, Ipcia M. Kercadé Melénez, a career employee
for eighteen years with the Department of Public Instruc-
tion (“DPI’’), filed this complaint against defendant, Awilda
Aponte Roque, Secretary of DPI, under 42 U.S.C. sects.
1983 claiming she was discharged from the position of
Superintendent of the Dorado School District in violation
of the Fifth and Fourteenth Amendment Due Process
clause and that the discharge was motivated by political
discrimination in violation of the First Amendment.' As
relief plaintiff seeks a permanent injunction reinstating her
as Superintendent of the Dorado School District, restoring
all her teaching certificates and compensating her with
compensatory and punitive damages.

A five day bench trial of this case was held in March,
1986. Evidence was presented addressing plaintiff’s claim
that her termination violated both due process and the

' Plaintiff also filed this action under 42 U.S.C. sects. 1985, 1986.
The evidence presented at trial was not addressed to either of these
statutes. Consequently, we make no ruling on this basis.

29a

First Amendment. Based on the pleadings, the evidence
presented at trial, and after considering the demeanor and
credibility of the witnesses, the Court enters the following
findings of facts and conclusions of law.

PROCEDURAL HISTORY

After working as a DPI employee for eighteen years,
plaintiff was terminated from the position of Superintend-
ent of the Dorado School District for the first time on
October 28, 1985. On that date plaintiff received a com-
plaint signed by the defendant, the Secretary of DPI, or-
dering her dismissal, cancelling of all her certificates to
teach in both public and private schools,? and charging her
with seven infractions of the Teachers’ Misconduct Act,
Law 115 of June 30, 1965, 18 L.P.R.A. section 274 (‘“‘Law
115’’).2 Plaintiff was also informed through the complaint
of her right to appeal the Secretary’s action within ten
days to the DPI Board of Appeals.

Within ten days of receiving defendant’s order plaintiff
appealed the charges to the Board of Appeals. Plaintiff
also filed the present action and petitioned this Court for
a Temporary Restraining Order seeking to enjoin her dis-
missal. After filing the claim in this Court plaintiff with-
drew her appeal before the Board of Appeals.

2 Plaintiff holds teaching certificates to work as an Elementary
teacher, Principal, General Supervisor and Superintendent of Schools.

’The defendant’s action dismissing plaintiff and cancelling her cer-
tificates was justified on the basis of the following provisions of Law
115, 18 L.P.R.A. 274:

(c) Negligence in the performance of the duties as a teacher.

(d) Insubordination ...

(g) Observance of improper behavior injurious to the good name
of the Public Education.

30a

Plaintiff's petition for a TRO was based on the claim
that she was separated from employment without a pre-
termination hearing in violation of due process as required
by CLEVELAND BD. of EDUCATION v. LOUDERMILL,
__.U.S. __, 105 S.Ct. 1487 (1985). Rather than granting
a TRO, this Court set a “‘show cause” hearing for No-
vember 18, 1985, at which the parties were to come pre-
pared to address the due process issue and plaintiff's right
to a preliminary injunction on that basis.

On the very day set for the ‘‘show cause” hearing the
charges against plaintiff were withdrawn and she was rein-
stated as Dorado Superintendent, thereby mooting the pre-
liminary injunction sought as relief. On November 25, 1985
plaintiff was delivered a letter requesting her presence at
an informal hearing on ‘‘new” charges against her. The
hearing was held the next day, November 26, 1985, before
Elba Rodriguez Fuentes, the Director of the DPI Legal
Division and two other attorneys with the Department.
Elba Rodriguez read plaintiff the charges against her and
plaintiff was given the opportunity to respond. No evidence
or witnesses were presented by either side.

On December 9, 1985 plaintiff was served for the second
time with a complaint signed by defendant ordering her
dismissal and cancelling her Superintendent’s certificate.
The complaint made four charges against plaintiff which,
except for the condensed form, were identical to the seven
charges made in the original October 28, 1985 complaint.

Plaintiff did not file an appeal of this order to the DPI
Board of Appeals. Instead, she pursued the litigation of
her rights in the present action. During the period between
plaintiff's first discharge on October 28, 1985 and the sec-
ond discharge on december 9 a trial date was set by this
Court and discovery proceeded. While litigation was on-
going in this Court defendant withdrew the first complaint
against plaintiff and no- administrative proceeding con-

3la

cerning plaintiffs dismissal was commenced before the DPI
Appeals Board.‘

FACTS

Plaintiff is an active member of the New Progressive
Party (‘““NPP’’). She has been a frequent attendant at NPP
functions and speaks freely of her political party affiliation.
Defendant, plaintiff's immediate supervisor and other DPI
omployees were well aware of plaintiff's political affiliation.

Defendant is a member of Popular Democratic Party
(“PDP”). After eight years of NPP administration in
Puerto Rico, the PDP regained power in the November,
1984 election. Following the transition to a PDP admin-
istration in January, 1985 the defendant, Awilda Aponte
Roque, was appointed Secretary of DPI.

Plaintiff began to work for the DPI in 1967, after having
completed a Bachelor’s and Master’s Degree in Education

‘Prior to trial defendant requested plaintiff's claim to be dismissed
for failure to exhaust state remedies or in the alternative, that this
Court abstain in favor of an administrative hearing before the DPI
Appeals Board. We denied defendant’s request. Exhaustion of state
remedies is not a prerequisite to bring a civil rights claim under 42
U.S.C. sect. 1983 in federal court. Patsy v. Board of Regents of the
State of Florida, 457 U.S. 499, 102 S.Ct. 2557, 73 L.Ed. 2d 122 (1982).

Furthermore, there was no reason for abstention since no admin-
istrative hearing was pending while litigation was proceeding in this
Court. Though our denial of defendant’s request for abstention was
made prior to the recent Supreme Court opinion in Ohio Civil Rights
Commission v. Dayton Christian Schools, No. 85-488 (June 27, 1986),
the decision is distinguishable from the situation before us and would
not alter our ruling. In support of our decision denying defendant’s
request we refer to the oft quoted language from Mitchum v. Foster,
407 U.S. 225,242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972)quoting Ex
Parte Virginia, 100 U.S. 339,346, 25 L.Ed. 676 (1880)}: “(t]he very
purpose of section 1983 was to interpose the federal courts between
the States and the people, as guardians of the people’s federal rights—
to protect the people from unconstitutional action under color of state
law, “whether that action be executive, legislative, or judicial’.”

32a

at Interamerican University in San Juan, Puerto Rico.
Since being hired by DPI plaintiff has worked as an ele-
mentary teacher, principal of an elementary school, Deputy
Director and Director of the Institute of Educational Ser-
vices. In 1980 she was appointed Superintendant of the
Dorado School District, a position she held until her ter-
mination in 1985. As Dorado Superintendent plaintiff was
a “‘career’’ employee as defined by the Puerto Rico Per-
sonnel Act, 3 L.P.R.A sect. 1849. Under the law of Puerto
Rico, a ‘“‘career’”’ employee with DPI, or any other Com-
monwealth agency, can be involuntarily terminated from
employment only for ‘‘just cause.’’®

5 The Puerto Rico Personnel Act, 13 L.P.R.A. sect. 1336(4) states:

(4) The appointing authorities may remove any career employ-
ees for good cause and upon previous preferment of charges, in
writing, and upon prior holding of an administrative hearing, if
the employee so requests.

Law 115, 18 L.P.R.A. sect. 274 states:
Procedure for cancellation of certificates—Causes

The Secretary of Education may permanently cancel the certificate of
any teacher, or suspend such certificate for a definite period of time,
through the procedure herein provided, for any of the following causes:

(a) Prevarication, bribery or immoral] conduct.

(b) Incompetency in the discharge of his duties as a teacher.
(c) Negligence in the discharge of his duties as a teacher.
(d) Insubordination.

(e) Being convicted of a felony by any court.

(f) Incurrence of the conduct forbidden by sections 249-249e of this
title.

(g) Disorderly or improper conduct, or such as is prejudicial to the
good name of the public education system of Puerto Rico.

(h) Holding a certificate through fraud or deceit.

See also, Diaz Gonzdlez v. Tribunal Supremo, 102 D.P.R. 195 (1974);

33a

During her eighteen years of employment with DPI,
plaintiff was never formally reprimanded for her job per-
formance until October 28, 1985, when she received the
first notice of dismissal. In fact, a witness for plaintiff,
Regina Sevilla de Santiago, a 31 year veteran with DPI
who served as plaintiff's supervisor for eight years in-
cluding the years 1980-1984 while plaintiff was Dorado
Superintendent, testified that plaintiff was very profes-
sional in her work and was highly dedicated to DPI and
to her duties as Superintendent of the Dorado schools.

Seven charges were made against plaintiff when she was
terminated for the first time on October 28, 1985. On
December 9, 1985, when she was discharged for the second
time, four charges were made. Other than the condensed
format the four charges made in December are identical
to the seven made in October. The charges against plaintiff
to justify her dismissal state as follows:

1. You did not process the appointments of four-
teen Teacher Assistants in the Schoo! District of Dor-
ado thus disobeying the orders of the Director of the
Bayamon Educational Region.

2. You kept Mrz. Clara Luna Garcia working in
your office during the month of August, 1985, without
the authorization of the Regional Director nor that of
the Secretary of Public Education, knowing that Mrs.
Luna had been reinstated to her permanent position
as a Mathematics Teacher.

8. You kept Mr. José W. Ramos Urbina working
in your office without the authorization of the Re-
gional Director nor that of the Secretary of Public
Education, knowing that he had been reinstated to

Pastor Lozada v. Director Ejecutivo, 101 D.P.R. 923 (1973), interpreting
the Personnel Act upon which the present Personnel Act of Puerto
Rico is based.

34a

his permanent position as elementary school teacher,
effective July 1st, 1985.

4. You altered the duties of Mr. Hécter J. Lépez
Maldonado, Assistant Superintendent, making it im-
possible for him to work normally in the position to
which he was appointed, thus affecting the smooth
functioning of the Dorado School District.

Defendant claims the first charge—that plaintiff failed
to appoint the teachers’ aides—was an act of insubordi-
nation in violation of Law 115. Plaintiff had received a
letter dated October 4, 1985 from her supervisor, the Bay-
amon Regional Director, Leida Cintrén, with instructions
to appoint the following persons selected by Ms. Cintrén
to serve as teachers’ aides. Neither this letter nor a follow-
up letter to plaintiff from Ms. Cintrén dated October 18,
1985—asking plaintiff for an update on the teachers’
aides—gave plaintiff a time limit within which to process
the appointments.

Prior to defendant’s appointment as DPI Secretary
teachers’ aides were selected by plaintiff, as the Super-
intendent of the district with the aid of the Dorado School
Principals. After defendant took office a new system was
instituted. The fourteen teachers’ aides to be appointed in
the Dorado District were to be selected by a committee
of Dorado School Principals, plaintiff—Dorado Superin-
tendent, and Maria Cérdova de Zayas—the Assistant Di-
rector of the Bayamén Region serving as the Regional
Director’s representative. In the case that no consensus
was reached the aides were to be selected by Leida Cin-
trén, the Bayamén Regional Director.

On August 20, 1985. the committee met. Consensus was
reached on only three people. As for the remaining ten
appointments, for which there was no consensus, the Re-

NO eal ns arian

35a

gional Director herself made the selection and sent plaintiff
the letter dated October 4, 1985 with her decision.®

Plaintiff claims her failure to appoint the aides was not
an act of insubordination. She testified that she did not
receive the Regional Director’s letter until October 11,
1985, that she was understaffed, and that the appointment
process takes work to complete. Plaintiff claims she did
not have sufficient time to make the appointments prior
to her dismissal on October 28, 1985.

The second and third charges against plaintiff—that she
kept Clara Luna Garcia and José Ramos Urbina working
in her office—are, according to defendant, acts of insu-
bordination in violation of defendant’s directives outlines
in a May 20, 1985 memo to all DPI Superintendents and
an Amendment to Circular Letter 20-84-85 issued July 19,
1985. The May 20, 1985 memorandum stated that DPI had
a problem of a large number of teaching personnel working
in positions other than those to which they were appointed.
To correct the situation the memo ordered all employees,
effective July, 1985, to be located in the work unit to
which they were assigned. The July 19, 1985 memorandum
amending Circular Letter 20-84-85 established the proper
procedure for reassigning teachers from their appointed
positions. The amendment provides that reassignments are
allowable on petition of the employee or when services of
an employee are necessary for, among other reasons, a
“special situation’’ in the school district.’

*'The evidence indicates that no consensus was reached in part be-
cause the Regional Director’s representative, Maria Cérdova, refused
to accept the committee’s recommendations. The evidence further in-
dicates that both Ms. Cintrén and Ms. Cordova are affiliated with the
PDP.

7 The pertinent portion of the July 19, 1985 memo states:

According to the rules and regulations for teacher appointments,
the School Superintendent may reassign in his/her school district
the personnel with teaching and student service duties, and special

36a

Plaintiff denies that the temporary use of Clara Luna
and José Ramos was an act of insubordination. Prior to
defendant’s appointment it was accepted practice to bor-
row the services of a teacher when the Superintendent’s
office was short of staff. Plaintiff testified that she as-
sumed that the shortage of employees in her office con-
stituted a “special situation’”’ within the meaning of the
July 19, 1985 amendment to the Circular Letter and,
therefore, the temporary reassignment of Clara Luna Gar-
cia and José Ramos was proper.

It is undisputed that plaintiff's office was shorthanded
at that time. On July 2, 1985 plaintiff sent a letter to the
Governor, with a copy to the defendant, explaining her
problem of staff shortages and listing 14 positions which
remained unfilled.’ Plaintiff stated in the letter that she

teachers, in the same category, upon request of the employee or
for service needs...

Service needs shall be understood as

d. taking care of special situations that may arise in a school
or school district.

* According to the July 2, 1985 letter to the Governor, the following
positions were vacant:

Assistant Superintendent

Asst. Superintendent (supposedly)
Asst. Superintendent Chapter I
Sup. Special Education Zone
Supervisor Spanish Zone
Supervisor Mathematics Zone
Director Maguayo Elem. School
Director Jose de Diego School
Director Pre-vocational Center
10. Custodians

11. Sec. - Clerk Typist II

12. Executive Official

13. Sec. - Clerk Typist

14. Clerk

PSM ere rrr

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37a

had notified the proper people of this problem without
success and, she added, that she hoped there was no “‘per-
secution” involved in creating this situation.

In the case of both Clara Luna and José Ramos plaintiff
asked permission of the Principals of the schools where
they were assigned to use them temporarily. Clara Luna
was ass

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1636%3A1. Public record. Not legal advice.