Lopez-Erquicia v. Weyne-Roig
Filing
OPINION issued by Rogeriee Thompson, Appellate Judge; Timothy Belcher Dyk,* Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. *Of the Federal Circuit, sitting by designation. [15-2278]
Case: 15-2278
Document: 00117110089
Page: 1
Date Filed: 01/25/2017
Entry ID: 6064986
United States Court of Appeals
For the First Circuit
No. 15-2278
ANA MARÍA LÓPEZ-ERQUICIA,
Plaintiff, Appellee,
v.
ÁNGELA WEYNE-ROIG,
Defendant, Appellant,
OFFICE OF THE INSURANCE COMMISSIONER OF PUERTO RICO;
JANE DOE; JOHN DOE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Thompson, Kayatta, and Dyk,
Circuit Judges.
Luis N. Blanco-Matos for appellant.
Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,
Sheila Torres-Delgado, Eliezer A. Aldarondo-López, David R.
Rodríguez-Burns, and Aldarondo & López-Bras were on brief, for
appellee.
Of the Federal Circuit, sitting by designation.
Case: 15-2278
Document: 00117110089
Page: 2
Date Filed: 01/25/2017
January 25, 2017
Entry ID: 6064986
Case: 15-2278
Document: 00117110089
KAYATTA,
Circuit
Page: 3
Date Filed: 01/25/2017
Judge.
Ana
María
Entry ID: 6064986
López-Erquicia
("López") claims that Puerto Rico's Insurance Commissioner, Ángela
Weyne-Roig ("Weyne"), eliminated López's job as a director within
the Office of the Insurance Commissioner ("OIC") on account of
López's political affiliation.
Weyne now seeks interlocutory
review of the district court's rejection of her argument that her
qualified immunity defense entitled her to summary judgment on
López's federal damages claim.
Finding that a reasonable official
in Weyne's position could have understood the First Amendment not
to protect López against politically motivated removal from her
job, we reverse.
I.
Background
In denying Weyne's motion for summary judgment, the
district court properly viewed the record in the light most
favorable to López, and assumed the facts to be as supported by
López's competent evidence.
that regard.
Neither party claims any error in
We therefore take the facts "as given," filling any
gaps by similarly viewing the record "in the light most favorable
to [López]."
Johnson v. Jones, 515 U.S. 304, 319 (1995).
Under Puerto Rico law, "career" employees may only be
terminated for cause, whereas "trust" or "confidential" employees
"can be selected and removed at will."
See P.R. Laws Ann. tit. 3,
§§ 1462e, 1465; see also id. § 1462c.
In 2004, after working as
an attorney at the OIC for a number of years, López was promoted
- 3 -
Case: 15-2278
Document: 00117110089
Page: 4
Date Filed: 01/25/2017
Entry ID: 6064986
to the career position of Director of the Anti-Fraud Special
Investigations
("AFSI")
Division.
In
January
2009,
she
was
appointed by then-Insurance Commissioner Ramón Cruz-Colón ("Cruz")
to the trust position of Auxiliary Commissioner of Legal Affairs.
Several
months
later,
López
received
an
additional
trust
appointment to the position of Chief Deputy Commissioner, thereby
elevating her to second-in-command of the agency.
Both Cruz and
López were affiliated with the New Progressive Party, as was the
Governor of Puerto Rico at the time.
In November 2012, Puerto Rico elected the gubernatorial
candidate of the Popular Democratic Party.
The Governor-elect
subsequently announced that he would be nominating Weyne to serve
as
his
Insurance
Commissioner.
In
January
2013,
López
was
reinstated to her previous career position as AFSI Director.
Around the same time, Weyne assumed her position as Insurance
Commissioner.
Shortly thereafter, Weyne summoned López to her
office to inform her that "things would be changing."
López
responded by pointing out that her AFSI Director position was a
career position, and that she intended to continue serving in the
position "with excellence."
Nevertheless, López alleges that over
the course of the next several months, she was subject to various
forms of politically motivated harassment and disparate treatment.
On May 29, 2013, Weyne informed López that Weyne was
eliminating the AFSI Division and transferring López's employees
- 4 -
Case: 15-2278
Document: 00117110089
Page: 5
to the Market Conduct Division.
Date Filed: 01/25/2017
Entry ID: 6064986
Because the division of which she
was the director ceased to exist, López was reclassified as a
Principal Attorney and assigned to the Legal Affairs Division.
Although López retained the same salary and fringe benefits, her
duties and the nature of her work changed substantially.
Soon thereafter, López filed this lawsuit against Weyne,
the OIC, and certain unknown OIC staff members (collectively, the
"Defendants"), alleging that the job reassignment and alleged
harassment violated the First and Fourteenth Amendments of the
U.S. Constitution, various provisions of Article II of the Puerto
Rico Constitution, and various provisions of Puerto Rico law.
Under 42 U.S.C. § 1983, López sought damages from Weyne personally
for the alleged violations of federal law.
The district court granted the Defendants' motion for
summary judgment as to López's due process claims, but denied it
as
to
her
remaining
discrimination
claims,
claims
injunctive relief.
for
including
damages,
her
federal
declaratory
political
relief,
and
In so doing, the court rejected Weyne's
principal argument that any rational jury would have to conclude
that López simply lost her job as a collateral effect of a broader
reorganization of the agency.
The district court also rejected an
alternative
by
defense
raised
Weyne:
that
even
if
the
reorganization could be interpreted as an action directed at López
because
of
her
political
affiliation,
- 5 -
Weyne
was
entitled
to
Case: 15-2278
Document: 00117110089
Page: 6
Date Filed: 01/25/2017
Entry ID: 6064986
qualified immunity on the § 1983 damages claim because a reasonable
official could have thought that López's position fell within the
exception to the First Amendment's bar on political removals
recognized in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v.
Finkel, 445 U.S. 507 (1980).1 That denial of the qualified immunity
defense was immediately appealable for the purpose of allowing
review of the district court's assessment of the law as applied to
the assumed facts.
Cir. 2014).
See Cady v. Walsh, 753 F.3d 348, 358–59 (1st
After Weyne promptly sought such review, we granted
Weyne's request for a stay of the proceedings below and denied
López's request for summary disposition.
We now turn to the
substance of the appeal.
II.
Under
our
two-part
Discussion
test
for
qualified
immunity
in
political discrimination cases, we ask (1) "whether the nature
of [the] position was such that defendants were entitled to
consider . . . political affiliation as a job qualification," and
(2) "even if they were not, whether a reasonable offic[ial] at the
time would have understood patronage dismissal [or demotion] to be
1
This "exception is reserved for instances in which political
affiliation is an 'appropriate requirement for the effective
performance of the public office involved,'" Galloza v. Foy, 389
F.3d 26, 28 (1st Cir. 2004) (quoting Branti, 445 U.S. at 518), and
"helps to ensure that elected representatives will not be hamstrung
in endeavoring to carry out the voters' mandate," id. (citing
Elrod, 427 U.S. at 367).
- 6 -
Case: 15-2278
Document: 00117110089
barred."
Cir.
Page: 7
Date Filed: 01/25/2017
Entry ID: 6064986
López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 25 (1st
2008).
questions,
For
ease
of
respectively,
"reasonableness" question.
reference,
as
the
we
"merits"
refer
to
question
these
two
and
the
We treat each question as a question
of law, to be answered de novo.
Hunt v. Massi, 773 F.3d 361, 367
(1st Cir. 2014).
The preferred approach is to decide the merits question
first, reaching the reasonableness question only if the merits
question is resolved against the defendant.
See López-Quiñones,
526 F.3d at 25 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
In this case, though, we face an unusual twist:
in her answer to
the complaint, Weyne admitted that party affiliation was not an
appropriate requirement for López's position.
Hence, the district
court deemed the merits question "uncontested."
And on appeal,
while protesting that she could not have conceded a point of law,
Weyne offers no developed argument for why that is so.
district
court,
then,
we
also
treat
the
merits
Like the
question
as
"uncontested."
This concession nevertheless does little to narrow the
scope of our inquiry.
To answer the reasonableness question--
whether a reasonable official at the time could have understood
López's job to be unprotected--we pretty much have to run through
the entire merits analysis anyhow.
We do so not to answer the
uncontested merits question, but rather to see how close a question
- 7 -
Case: 15-2278
Document: 00117110089
it is.
Page: 8
Date Filed: 01/25/2017
Entry ID: 6064986
Furthermore, the test we apply in assessing the closeness
of the question "is objective, rather than subjective; we focus on
what
a
reasonable
[official]
could
have
believed,
not
allegations about what [the official] actually believed."
on
Eves v.
LePage, 842 F.3d 133, 142 (1st Cir. 2016); see also López-Quiñones,
526 F.3d at 27.
Though qualified immunity does not shield "the
plainly incompetent or those who knowingly violate the law," Eves,
842 F.3d at 140–41 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam)), an official cannot "fairly be said to 'know'
that
the
law
forbade
conduct
not
previously
identified
unlawful," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
as
With
this twist explained, we turn to examining López's job to see how
a reasonable official could have viewed it.
In conducting this examination, we try to determine the
extent to which "the position involve[s] government decisionmaking
on issues where there is room for political disagreement on goals
or their implementation."
Jimenez Fuentes v. Torres Gaztambide,
807 F.2d 236, 241–42 (1st Cir. 1986) (en banc), cert. denied 481
U.S. 1014 (1987).
We begin "with an inspection of the functions
of the position in question."
Valdizán v. Rivera-Hernandez, 445
F.3d 63, 65 (1st Cir. 2006) (citing Branti, 445 U.S. at 518)).
We
"examine
position
to
a
to
determine
the
particular
whether
it
responsibilities
resembles
a
of
the
policymaker,
privy
confidential information, a communicator, or some other office
- 8 -
Case: 15-2278
Document: 00117110089
Page: 9
Date Filed: 01/25/2017
Entry ID: 6064986
holder whose function is such that party affiliation is an equally
appropriate requirement."
Jimenez Fuentes, 807 F.2d at 242.
We
also look to secondary factors such as relative pay, title, and
legal
or
legislative
analysis.
classification
to
further
inform
our
See López-Quiñones, 526 F.3d at 28; Fontane-Rexach v.
P.R. Elec. Power Auth., 878 F.2d 1493, 1497 n.4 (1st Cir. 1988);
Jimenez Fuentes, 807 F.2d at 246.
In analyzing López's job functions, both parties rely
primarily on the "Skills Profile" contained in the record.
so as well.
We do
See Olmeda v. Ortíz-Quiñónez, 434 F.3d 62, 66 (1st
Cir. 2006) (citing Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4, 8
(1st Cir. 2001)) ("[A]n official description of job functions is
a presumptively reliable basis for determining those functions.").
The Skills Profile establishes that the AFSI Director performs
"[m]anagerial
work
.
.
.
of
great
complexity
and
responsibility . . . under the general supervision of the Deputy
Supervision
and
Compliance
Commissioner."
Though
the
Deputy
Commissioner "gives out specific instructions for the performance"
of
such
work,
the
AFSI
Director
"[e]xercises
initiative
and
individual judgment in the performance of . . . her duties."
The Skills Profile also sets forth the various "Duties
and Responsibilities" of the position.
Among other things, the
AFSI Director "[p]lans, coordinates and supervises the work of
the
.
.
.
[u]nit
in
order
to
- 9 -
prepare
studies
and
conduct
Case: 15-2278
Document: 00117110089
Page: 10
Date Filed: 01/25/2017
Entry ID: 6064986
investigations and research about the insurance industry."
AFSI
Director
"[c]oordinates
with
federal,
local
and
The
state
agencies, as well as with private information agencies that may
assist in the investigative work" of the unit.
The AFSI Director
also "[d]evelops rules and procedures and interprets statutes and
regulations related to . . . her area of responsibility."
The
AFSI Director not only "[c]ollaborates with and advises the Deputy
Commissioner in matters related to the duties of the unit," but
also "[s]ubstitutes for the Deputy Commissioner, when required."2
So, what are we to make of these functions?
To answer
that question, it is helpful to consider a sampling of other jobs
that
have
qualified
or
not
politically motivated removal.
qualified
for
protection
from
As we pointed out in Flynn v. City
of Boston, 140 F.3d 42 (1st Cir. 1998), "[t]he Supreme Court
cases . . . granting or looking toward protection . . . have
involved
a
floor
supervisor,
a
guard,
a
process
server,
an
assistant public defender, a rehabilitation counselor, a road
equipment operator, a garage worker, and a dietary manager."
at 45 (citing pertinent cases).
Id.
We ourselves have found similarly
protected a "director of general services" who was responsible for
inventory, maintenance, and related "mechanical" functions as well
as
the
supervision
of
approximately
2
thirty
employees,
López-
The position of Deputy Commissioner is itself a trust
position. See P.R. Laws Ann. tit. 26, § 237(1).
- 10 -
Case: 15-2278
Document: 00117110089
Quiñones,
526
F.3d
at
Page: 11
26-27;
an
Date Filed: 01/25/2017
administrative
Entry ID: 6064986
aide
to
the
assistant director of a municipal agency, Cordero v. De JesusMendez,
867
F.2d
1,
14-15
(1st
Cir.
1989);
the
"Cleaning
Supervisor" of a municipality, id. at 16–17; and the "Internal
Auditor" of a municipality, whose nonsupervisory job was to check
all municipal payroll and financial records for errors, which he
would then report to a superior, id. at 17–18.
Conversely, we have found unprotected the positions of
Assistant Secretary of State for Protocol Affairs at the Puerto
Rico State Department, who made recommendations to and counseled
Puerto Rico's highest elected officials, Méndez-Aponte v. Bonilla,
645
F.3d
60,
67-68
(1st
Cir.
2011);
a
municipal
recreation
commissioner with "considerable capacity to influence municipal
decisions
affecting
parks
and
recreation,"
Foote
v.
Town
of
Bedford, 642 F.3d 80, 86 (1st Cir. 2011); an "administrator" who
developed legal strategy on environmental law issues and cases for
the Puerto Rico Electric Power Authority, Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 429–30 (1st Cir. 2010); a municipal police
chief, Wilson v. Moreau, 492 F.3d 50, 53 (1st Cir. 2007); an
"Executive
II"
in
Puerto
Rico's
Department
of
Labor
who
participated in "the formulation and implementation of public and
finance policy," Valdizán, 445 F.3d at 65-66; a regional tax
administrator, Galloza v. Foy, 389 F.3d 26, 31–32 (1st Cir. 2004);
associate directors of several community centers, Flynn, 140 F.3d
- 11 -
Case: 15-2278
Document: 00117110089
Page: 12
Date Filed: 01/25/2017
Entry ID: 6064986
at 45-46; and an audit director who supervised employees and
counseled a senior official about policy matters, Zayas-Rodriguez
v. Hernandez, 830 F.2d 1, 3 (1st Cir. 1987).3
We
need
not
precisely
locate
López's
AFSI
Director
position on the spectrum established by the foregoing precedent.
Rather, we need determine only whether that precedent "placed
the . . . constitutional question beyond debate," Ashcroft v. alKidd,
563
U.S.
731,
741
(2011),
i.e.,
whether
it
clearly
established the position's constitutionally protected status.
In
making that determination, we find especially significant López's
responsibility
to
"[d]evelop[]
rules
and
procedures
and
interpret[] statutes and regulations" while "advis[ing]" and even
"[s]ubstitut[ing]
for
the
Deputy
Commissioner."
These
job
requirements suggest "that [López] is an official, that she is
involved in policymaking at least as an adviser, and that she is
expected on occasion to serve as a representative of the [OIC]
itself."
Olmeda, 434 F.3d at 67.
Moreover, as in López-Quiñones
--where we found a position constitutionally protected and yet the
position's protected status not clearly established--López "headed
the unit in question"; "some of [her] duties were broadly phrased
3
We limit our sampling of cases to those decided before Weyne
eliminated López's position because the reasonableness inquiry
trains on the state of the law at the time of the challenged
action, not at the time that the suit challenging the action is
filed. See Harlow, 457 U.S. at 818; accord López-Quiñones, 526
F.3d at 25.
- 12 -
Case: 15-2278
Document: 00117110089
Page: 13
Date Filed: 01/25/2017
Entry ID: 6064986
(even if seemingly less impressive in practice)"; she was "lightly
supervised"; and she "reported directly to a political appointee."
526 F.3d at 28.
To be sure, López’s position was not classified as a
trust position, and "a legislature's classification system is . . .
entitled to some deference."
Jimenez Fuentes, 807 F.2d at 246.
Nevertheless, our precedent makes clear that "[a]ctual functions
of the job . . . control" our analysis.
Olmeda, 434 F.3d at 66
(citing Flynn, 140 F.3d at 44); see also Duriex-Gauthier, 274 F.3d
at 8.
Here, those actual functions preclude us from finding that
a reasonable official, even one familiar with the law,4 would have
found
it
clear
that
López's
Amendment's protective ambit.
position
fell
inside
the
First
That, in turn, means that Weyne is
4
The notion of a "reasonable" official is in some respects
quite "artificial," as few officials will be familiar enough with
the law to determine exactly what is "clearly established."
Hallstrom v. City of Garden City, 991 F.2d 1473, 1483 (9th Cir.
1993); see also Amore v. Novarro, 624 F.3d 522, 535 (2d Cir. 2010)
("[T]he statement in Harlow that reasonably competent public
officials know clearly established law[] is a legal fiction."
(second alteration in original) (quoting Lawrence v. Reed, 406
F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting))). In
reality, the reasonableness question combines a court's assessment
of the law with an official's hypothetical application of that
assessment to the relevant factors. Cf. Heien v. North Carolina,
135 S. Ct. 530, 541 (2014) (Kagan, J., concurring) (making the
analogous observation, albeit in the "more demanding" context of
determining when the Fourth Amendment permits seizures predicated
upon mistakes of law, that "the test is satisfied when the law at
issue is 'so doubtful in construction' that a reasonable judge
could agree with the officer's [proffered] view" of the law
(quoting The Friendship, 9 F. Cas. 825, 826 (C.C.D. Mass. 1812)
(No. 5,125))).
- 13 -
Case: 15-2278
Document: 00117110089
Page: 14
Date Filed: 01/25/2017
Entry ID: 6064986
immune to a federal claim for damages under § 1983, even if the
reorganization was targeted at López because of her political
affiliation.
See López-Quiñones, 526 F.3d at 27 ("[T]he abstract
right of a non-policy-related employee to be free from politically
motivated termination . . . is not enough to defeat qualified
immunity.").5
III.
Conclusion
We reverse the district court's denial of qualified
immunity and remand for further proceedings consistent with this
opinion.
5
On appeal, López advances no claim that any conduct that
occurred prior to her job reassignment entitles her to recover
damages from Weyne even if her job reassignment does not.
- 14 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?