USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 97-1489

NYLSA ACOSTA-OROZCO, et al.,

Plaintiffs, Appellants,

v.

CARMEN RODRIGUEZ-DE-RIVERA, et al.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose A. Fuste, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________
____________________

Manuel Alvarado for appellants.

_______________
Roxanna
Badillo-Rodriguez,
___________________________
General,
Fiol,

Assistant

Solicitor

Commonwealth of Puerto Rico, with whom Carlos Lugo____________

Solicitor General of

the Commonwealth of

Puerto Rico

____
and Edda Serrano-Blasini, Deputy Solicitor
_____________________
brief, for appellees.

____________________

December 22, 1997

____________________

General, were on

LYNCH,
LYNCH,

of

cases

Circuit Judge.
Circuit Judge.
_____________

following

Progressive Party

November 1992.

employees

Party

assumption of

In

these cases,

This

court faced

candidates

because

of

an earlier

won election in

their government jobs

by

the

New

elections held in

plaintiffs are

of the losing

(PDP) who assert that

their jobs

power

(NPP) in Puerto Rico in

who are members

from

that

the

This is another in a series

government

Popular Democratic

they were terminated or demoted

their political

wave

of such

1984 and NPP

affiliation.1

cases when

PDP

members complained

suffered because of

their party

membership.

In this case, the PDP-affiliated plaintiffs are six

long-term government

employees who

were demoted from

their

civil

service positions

Commonwealth's Department

as Managerial

of Social

the Department of the Family.

being performed

Services, now

aides to the Regional Directors

known as

who have been

designated as

of the agency.

The district

judgment for defendants on

the theory

that plaintiffs had not made out a prima facie case

established

the

They say their duties are now

by NPP members

court granted summary

Coordinators in

defendants

had

they would

have

anyway for

non-political reasons, regardless

and that

taken

action

of plaintiffs'

____________________

1.

See, e.g., Nieves-Villanueva v. Soto-Rivera, No.

_________ _________________
___________

(1st Cir. 1997);

Cir.

In re Martinez-Catala, 1997 WL
_____________________

96-1285

693558 (1st

1997); Roldan-Plumey v. Cerezo-Suarez, 115 F.3d 58 (1st

_____________
_____________

Cir. 1997);

Ortiz-Pinero v.
____________

Rivera-Arroyo, 84
_____________

F.3d 7

(1st

Cir. 1996).

-22

political affiliation.

Because we believe there are material

facts in dispute, we reverse and remand.

I.
I.

Our review of the district court's grant of summary

judgment is

de novo.

Sears, Roebuck & Co. v.

_____________________

Goldstone &
___________

Sudalter, P.C.,
______________

the facts in

128 F.3d 10,

15 (1st Cir. 1997).

the light most favorable to

summary judgment.

the party opposing

See id. at 12.

___ ___

Plaintiffs are six

of the former

career civil service

Department of Social Services of

now known as the

been working

to the PDP,

employees

Puerto Rico,

Department of the Family, all of

at the Department

plaintiffs belong

We state

whom have

for over twenty years.

the party of

All

former Governor

Rafael Hernandez Colon, who held office for two terms between

1984 and 1992.

In a process that began in

supervisory position of

within

the

plaintiffs

Department.

and

several

late 1987, a new

"Managerial Coordinator" was created

Between

1988

others were

and

1992,

the six

promoted

to

this new

position.

The

middle

Managerial

level

assistance to the

Coordinator classification

managerial

established

created

several Regional Directors.

Directors, in turn, report to

Governor's

position

cabinet.

as a career

The

to

was

provide

The Regional

the Secretary, a member of the

Managerial

Coordinator job

position under Puerto

-33

was

Rico's civil

service laws, which require that such an employee be selected

strictly on merit and can only

L.P.R.A.

1301,

Roque, 889
_____

F.2d 1209,

The Regional

be removed for cause.

1331-1338; Agosto-de-Feliciano v.
___________________

Directors,

1213 n.3 (1st

in

contrast,

"confidential employees," who are

of public

policy and render

the department,

L.P.R.A.

The

1350;

the Secretary

Cir. 1989)

were

Central Office of

Aponte_______

classified

Services.

Personnel Administration

as

formation

direct services to the

Agosto-de-Feliciano, 889 F.2d at

___________________

(en banc).

involved in the

of Social

See
___

head of

See
___

1213 n.3.

(COPA), the

agency charged with administering Puerto Rico's civil service

laws, approved

position.

the creation

In

approving the

agency necessarily

not

of

necessary

the Managerial

position,

the

concluded that political

prerequisite

for

Coordinator

civil service

affiliation was

holding

Managerial

Coordinator position.

The

Director

of

COPA

described

the

position

generally, in a job description written in 1988, as entailing

"managerial and administrative

responsibility

. . . activities

in

the

work of great

coordination and

complexity and

evaluation

of the Local Offices . . . ."

immediate superiors were

the Regional Directors.

of the

Plaintiffs'

On paper,

according to the COPA job description, the official duties of

a Managerial Coordinator

on

the agency's work

included offering technical

plans, keeping the

advice

Regional Directors

-44

and

the

Secretary

investigating

monitoring

and

local

informed

of

local

reporting

on

grievances

offices' expenses,

office

training

of

operations,

employees,

local office

supervisors, analyzing statistical reports, preparing reports

about evaluation visits

In practice,

ranged

plaintiffs' duties

widely,

and

programs, attending

the

Regional

activities,

checks.

to local offices, and

included

to client

Director,

as Managerial

Coordinators

coordinating

inter-agency

complaints, substituting

planning

and signing per

other duties.

professional

diem and

and

for

social

mileage reimbursement

Plaintiffs' positions "provid[ed] support

functions

to the Regional Directors, analogous to those of an aide."

In

by the

came

the 1992 general election, the PDP was defeated

rival NPP, and

to

power.

Rodriguez-de-Rivera

the present governor,

Governor

as

Rosello

Secretary

named

of

Pedro Rosello,

defendant Carmen

Social

Services.

Rodriguez-de-Rivera, in

In the first

turn, hired the

month of the

Regional Directors.

new administration, the

Regional

Directors began to take away many of the duties and functions

that

the

assigning

activists

Managerial

those duties

and

had

Coordinators

to

been

unofficially,

as

aides

Additionally,

the

Regional

Managerial

other

had

been

employees

designated,

to

the

Directors

Coordinators several

-55

who

were

NPP

officially

or

Regional

took

perquisites

performing,

Directors.

away from

the

that had

been

associated with

that position,

and office space.

political

party

such as

Defendants were aware

affiliation,

and

parking, telephones

of plaintiffs' PDP

the

aides

to

plaintiffs' duties were assigned were all politically

whom

active

supporters of the NPP party, newly in power.

In February 1993, one

defendant

Regional

of

her

launch

Rodriguez-de-Rivera,

Managerial Coordinator wrote

to

complain

that

the

new

Directors had taken away the duties and perquisites

position.

Rodriguez-de-Rivera's reaction

an investigation

of the

complainant

and the

was

to

other

Managerial

Coordinators.

investigation

position and

The

was to determine

the selection

stated

purpose

of

whether the creation

of candidates

had been

the

of the

proper.

Plaintiffs contend that the real purpose of the investigation

was to provide a legal cover for the impending demotions.

In

May

1993,

Secretary

Rodriguez-de-Rivera

dispatched Carmen Salivia, an official of the Social Services

Department, to

Coordinators.

conduct field interviews

During

Coordinators described the

being

performed by

reported

interviews

interviews,

delivered

the

Managerial

duties of their positions

NPP-affiliated aides

to the Regional

and

the

with the Managerial

Directors.

her

--

Salivia

notes to

-- now

and said

they

completed the

defendant

Enrique

Gonzalez-Polanco, Assistant Secretary in Charge of Personnel,

or to Mrs. Carmen Haddock, who worked in the office.

Salivia

-66

drew no conclusions and her investigation was terminated when

she went on vacation.

Rodriguez-de-Rivera also hired Francisco Cappas, an

outside personnel consultant, to review the matter.

Although

Salivia understood that her notes would be used in the Cappas

investigation, the interview notes were never given to Cappas

before he completed his reports.

Cappas apparently held

no

position within the government.

In June 1993,

to

Rodriguez-de-Rivera.

Cappas submitted two letter

reports

In the first, he concluded that the

position of Managerial Coordinator should be declared a legal

nullity

because it

duplicative

of

Specifically, he

the

had

been

duties

improperly

of

the

concluded that the

were in reality policymaking

created

Regional

and

was

Directors.

Managerial Coordinators

officials who reported directly

to the Secretary, not to the Regional Directors, and that the

position

should

"confidential"

have

rather than as

Under

Puerto

those

employees

agency.

therefore

Rico law,

See 3
___

been

a career civil

"confidential

who report

L.P.R.A.

classified

directly

service post.

employees" are

to

the head

1350 (aides

to

as

of

the heads

only

the

of

departments, but not aides to regional directors, included in

list

of

facially

confidential

contrary to

employees).

These

the determination

-77

conclusions

made

by COPA,

are

the

civil

service agency, when

it approved the

creation of the

positions.2

In his second report, Cappas concluded that many of

the

Managerial Coordinators

had

been improperly

promoted,

even though COPA had approved many of these promotions at the

time.

given a

Cappas recommended that the Managerial Coordinators be

hearing and -- if they could not counter his initial

assessment

positions.

--

that

they

be

demoted

to

their

previous

In

Secretary of

legality

of

repeating

1994,

December

1993, Rodriguez-de-Rivera

Justice of

the

Puerto Rico for

Managerial

the allegations

that the

appointments

legality

depended

allegations, not

on

of

factual

on any question

on the

In

May

to give an opinion,

the Managerial

the

the

appointments,

Cappas reports.

the Secretary of Justice declined

noting

an opinion

Coordinators'

of the

asked

Coordinators'

accuracy

of law, and

of

those

referred that

____________________

2.

Cappas

position

said

that

the

COPA

document

describing

the

had originally stated that the position reported to

the Secretary, but that this document was altered with liquid
paper

to state that

Directors.
with

reported to

the Regional

Cappas drew the inference that COPA had conspired

the Managerial

There is

the position

no evidence

Coordinators
that he

to

alter the

considered another

documents.
plausible

explanation

--that

mistake

the

in

plaintiffs'

the

alteration was

original

statements

--

reasonable

correction

Cappas

was

to Salivia

in the

field interviews

jury

unaware

of a

and

that they had always reported

course,

to the Regional Directors.

could

credit

the

of

Of

plaintiffs'

testimony and discredit the defendants' forgery theory.

-88

issue

to COPA, whose special expertise is the administration

of Puerto Rico's civil service laws.

Rodriguez-de-Rivera then requested

COPA and

(BMO)

the Director

to

determine

Coordinator was a

of the

that

Budget and

the

reports,

and

several of the

by

Management Office

position

nullity, sending a copy of

Governor Rosello and his staff.

by disputing

the Director of

refusing

The

of

Managerial

her letters to

COPA director responded

claims contained in

to

nullify

the

the Cappas

position

or

promotions of the Managerial Coordinators.

In

contrast with the civil service agency, the BMO

director responded by stating that he could find no

document

authorizing budgetary approval for the position, and drew the

inference that the position was therefore illegally created.3

In spite of

the COPA opinion,

Rodriguez-de-Rivera issued an

on August 9,

1994,

administrative order providing

"[t]hat all

positions classified as

in the Department are null."

Managerial Coordinators

Plaintiffs were not afforded an

administrative hearing prior to this declaration, or given an

opportunity

to dispute

the

allegations

contained

in

the

Cappas reports, although this had been recommended by Cappas.

____________________

3.

There is no evidence that the BMO director considered the

possibility, also

plausible, that

the proper

six years earlier simply had not been found.

produced

documents that tend

to show that

document from
Plaintiffs have

the BMO approved

the Managerial Coordinator position and that there has always

been budgetary authority for salaries and expenses associated
with that position.

-99

Each

of

the

plaintiffs

positions they had

result of

was

thereafter

demoted

to

previously held within the agency.

the nullification

order, each

of the

the

As a

plaintiffs

suffered a loss of salary in addition to making permanent and

official their previous de facto loss of position.

Plaintiffs say that their significant job functions

have been assumed

the position of

by other persons, all NPP

members, all in

aides to the Regional Directors.

understanding that aides to persons at

It is our

the level of regional

directors

cannot

be

classified

as

"confidential"

(or

political) employees within the Puerto Rico personnel system.

See 3 L.P.R.A.
___

1350.

II.
II.

In November

violations

of

their

1994, plaintiffs filed

First Amendment

suit, alleging

rights

of

political

affiliation under Elrod v. Burns, 427 U.S. 347 (1976), Branti

_____
_____
______

v. Finkel, 445 U.S. 507

______

of Ill.,
_______

497 U.S. 62

(1980) and Rutan v. Republican Party

_____
________________

(1990).

Plaintiffs also

alleged that

they were deprived of a property interest without due process

of

law, and that

their demotions violated

and statutes of the Commonwealth

the constitution

of Puerto Rico.

On January

27, 1997,

the district

defendants,

connection

affiliation.

court granted

finding that plaintiffs

between

The

their

demotions

district

court

summary judgment

had not shown

and

also

their

for

a causal

political

reasoned

that

-1010

defendants'

stated

rationale

for

the

demotions

--

departmental efficiency and respect for the personnel laws --

was sufficient

defense under

U.S. 274

to compel

finding that

defendants had

Mount Healthy City Sch. Dist. v.

_______________________________

(1977), even

if political

Doyle, 429
_____

affiliation had

played

some part in their decision.

III.
III.

Plaintiffs

have

produced evidence

sufficient

to

support a prima facie case of political party discrimination.

The First Amendment prohibits the government from demoting an

employee

for

affiliation

See Rutan,
___ _____

patronage

purposes

unless

political

party

is an appropriate requirement for that position.

497

U.S.

at

64;

Nereida-Gonzalez
________________

Delgado, 990 F.2d 701, 705 (1st Cir. 1993).

v.

Tirado_______

A plaintiff who

_______

was

demoted

from

requirement

is

job

for

inappropriate

which

party

affiliation

"may

ordinarily

forestall

summary judgment by pointing to evidence in the record which,

if credited, would

permit a rational factfinder

that

occurred

demotion

discriminatory animus."

There is

and

that

it

stemmed

from

Nereida-Gonzalez, 990 F.2d at 706.

________________

no dispute that plaintiffs

the "nullity" decree4

to conclude

were demoted;

eliminated their supervisory positions

____________________

4.

Of

course,

'nullity'
transfers,

"a

new

administration

[cannot]

use

the

of appointments doctrine as a cover of discharges,

and

affiliation."

discrimination
Santiago-Negron
_______________

431, 436 (1st Cir. 1989).

based
v.

solely

on

political

Castro-Davila, 865
_____________

F.2d

-1111

altogether

and

previously,

which are

subjects

returned

them

of lower

of demotion, "which

official rank,"

to

rank

the

jobs

and salary.

involve reductions in

Agosto-de-Feliciano, 889 F.2d

___________________

plaintiffs

plainly need not

situation

[is] unreasonably

they

the

the

pay and

at 1218

establish that their

inferior to

As

held

n.8,

new "work

norm for

the

position"

such that

"the new

work

substantial pressure on even one

the prevailing political view."

conditions would

place

of thick skin to conform to

Id. at 1218.5
___

____________________

5.

The

"unreasonably

Feliciano
_________

was

expressly

discrimination short
n.8.

Thus

survives

we

need

against

not

doctrine

limited

of actual

the Supreme

protections

inferior"

to

"It

providing

complaints

of

See id.
_______

at 1218

consider whether

that

doctrine

Court's extension
patronage

of First

dismissals

inferior' rule]

to

Amendment
"promotion,

Rutan, 497 U.S. at

_____

is an interesting question whether

[the 'unreasonably

Agosto-de__________

demotion.

transfer, recall, and hiring decisions."

79.

of

some vestige of

survives Rutan,
_____

thereby

a sort of . . . intermediate First Amendment haven

for employees wounded by slings and arrows less damaging than

those

[official

Nereida-Gonzalez,
________________

actions]

described by

990 F.2d at

705.

the

Rutan
_____

court."

That question

must be

answered another day.

The
action

Rutan Court
_____
against a

public

violates the First

employee's

suggested

in dicta

employee,

no

any adverse

matter

Amendment if it is in

exercise of First

that

how

minor,

retaliation for an

Amendment rights.

See Rutan,
___ _____

497 U.S. at 76 n.8 ("The First Amendment . . . protects state

employees . . . from even an act of retaliation as trivial as
failing

to hold

punish

[them] for

birthday party

. . .

exercising [their]

when intended

free

speech rights."

(internal quotation marks and citation omitted)).

regard such

colorful

rhetoric

as

to

necessarily

We do

not

foreclosing

something like the "unreasonably inferior" rule for personnel

actions short of demotions or transfers.
concerned with "deprivations

The Rutan Court was

_____

less harsh than

dismissal that

nevertheless press state employees and

applicants to conform

their

some

beliefs

and

associations

orthodoxy,"

id. at 75,
___

Feliciano's
_________

standard that

to

a formulation similar
"the

-1212

new

state-selected
to Agosto-de__________

work conditions

would

Viewed

plaintiffs, the

that

in

the

light

summary judgment

most

favorable

record amply

to

the

demonstrates

a rational factfinder could conclude that the demotions

stemmed from a

discriminatory animus.

In this

case, it was

uncontested for summary judgment purposes that the plaintiffs

were

all members of the

knew

this,

supporters of

and

that

the party

adverse party, that their superiors

their

duties

in power.

were given

Of course,

to

active

the Supreme

Court has cautioned that the mere fact that an adverse action

was

taken after an employee exercises First Amendment rights

is not enough by itself to establish a prima facie case.

Board of County Comm'rs v.

_________________________

(1996).

Umbehr, 116
______

"Merely juxtaposing

--

S. Ct.

2342, 2352

a protected characteristic

someone

else's politics

with

treated

unfairly is

claim."

Correa-Martinez v. Arrillaga-Belendez,
_______________
__________________

not enough

the

to

fact

plaintiff

state a

See
___

--

was

constitutional

903 F.2d 49,

58 (1st Cir. 1990) (citation omitted).

Nevertheless, a plaintiff

evidence

gun")

of discriminatory

to

establish

discriminatory demotion.

judgment in

favor of

need not produce

treatment (a

prima

facie

so-called "smoking

case

of

We have reversed entry

defendants in

direct

cases where

politically

of summary

plaintiffs

____________________

place
conform

substantial pressure
to

Feliciano,
_________

the

prevailing

889 F.2d at 1218.

conflict in the

on

even one

political

of
view."

thick skin

to

Agosto-de______________

We leave the resolution of any

standard for such adverse

personnel actions

to some future case.

-1313

have produced sufficient evidence

of a discriminatory animus

through circumstantial evidence.

Gonzalez-Rivera,
_______________

983

Rodriguez-Pinto v.
_______________

Cir.

F.2d

See, e.g., Rivera-Ruiz

_________ ___________

332,

335

(1st

Tirado-Delgado, 982 F.2d

______________

Cir.

34, 39-40

v.

1993);

(1st

1993); Aponte-Santiago v. Lopez-Rivera, 957 F.2d 40, 43

_______________
____________

(1st Cir.

1992).

In

Anthony v. Sundlun, 952

_______
_______

F.2d 603 (1st

Cir. 1991), this court noted:

[T]he

appellants' argument

that political
by

direct

Victims

of

seems

to be

favoritism must be proved

evidence.
heavy-handed

spoils system are

We
uses

disagree.
of

the

not limited to redress

in only those (relatively rare) instances

in which a "smoking gun" can be produced.
To the exact contrary, we have held, time
and again,

that circumstantial

alone can support a finding of

discrimination.

evidence
political

Id. at 605 (citing cases).

___

In this

the

mere fact

different party.

case, plaintiffs presented much

that they

were demoted

First, the

more than

by supervisors

reason given for

of a

the supposed

nullity of the Managerial Coordinators' appointments was that

their positions were

rather

than "confidential"

defendants

believed it

party affiliation into

Managerial

aides to

improperly classified as

was

positions.

appropriate

This

civil service

suggests that

to take

account in deciding to

political

eliminate the

Coordinators and transfer their duties to the new

the Regional

what plaintiffs

Directors.

say happened: their

Indeed, that is

exactly

duties were transferred

-1414

to NPP members.

find the

This

position was

happened although a jury could readily

appropriately classified

as a

civil

service position.

Second, a reasonable

jury could find Rodriguez-de-

Rivera's reaction to the initial complaint from a

PDP member

that

were being

her

rights under

the

civil service

laws

violated -- to launch an investigation of

the complainant --

to be evidence of political discrimination.

Third, the conduct of that investigation, including

the failure to apprise Cappas of the Managerial Coordinators'

statements

could

that they

support

reported

reasonable

to the

Regional

inference

that

Directors,

it

was

not

conducted fairly, but rather was simply intended to provide a

legal

pretext

for

a foreordained

decision

to

demote the

plaintiffs.

Fourth, the failure to afford

to

contest the allegations

of their

imply

concerning the alleged "nullity"

appointments and promotions

that the Department

plaintiffs a hearing

could likewise

was uninterested in

fairly

the truth of

the controversy.

Finally,

the advice of

casts

serious

Rodriguez-de-Rivera's

COPA, Puerto Rico's civil

doubt

on

the

supposed

disagreement

with

service commission,

"nullity"

of

the

plaintiffs' appointments or promotions and an inference could

-1515

be

drawn that

her

decision

was in

fact

motivated by

an

unlawful patronage objective.

IV.
IV.

The

district

entirely

on

however,

but decided

they

would

its

have

court

view

of

did

not

plaintiffs'

that defendants

taken

plaintiffs' political

rest

the

same

affiliation

prima

had

for

under

court

Mount Healthy.
______________

The

district

facie

case,

regardless

what

reasoned, established

decision

established that

action

"credible policy reasons" of departmental

the district

its

it

considered

efficiency.

valid

court noted

of

This,

defense

what

it

considered "a logical inconsistency" in plaintiffs' claims of

political

unclear

discrimination.

Observing that

the

record was

whether every Managerial Coordinator was a member of

the PDP, the district court reasoned that political diversity

among the Managerial Coordinators undercut plaintiffs' claims

of political discrimination.6

The district court added that,

____________________

6.

Of

course,

political

Coordinators would
cannot
their

prevail simply

by showing

that

political supporters, rather

motive may
condemns

among

not doom plaintiffs'

their political opponents,

produce unlawful

the

Managerial

claim.

Defendants

a desire

to reward

than a desire

to punish

underlay their decision.

results.

The First

that one must

have a sponsor in

in order to retain one's job."

U.S. 507, 516 (1980).

directed

Bennis
______

Amendment

the dominant

Branti v. Finkel, 445

______
______

That coercion is equally unlawful when

it is directed toward apolitical career employees as

is

Either

"the coercion of belief that necessarily flows from

the knowledge
party

diversity

towards

a party's

political

when it

opponents.

See
___

v. Gamble, 823 F.2d 723, 731-32 (3d Cir. 1987).

______

That

party

inevitably

chooses to

reward

its

affects those who

followers with

are not followers

good

jobs

and who see

-1616

alternatively, if the positions

PDP

members, that "would

some

political purpose,

were filled exclusively with

indicate that the

and was thus

a 'de

position served

confianza,' or

trust position," as the Cappas report had claimed.

The burden

establish a Mount
_____

have

did

not

is on

Healthy defense.
_______

been warranted

proffer compelled

of persuasion

. . . only

"Summary

'but

to

judgment would

if defendants'

the finding that

constitute a

the Secretary

evidentiary

political discrimination

for' cause

for

the demotion."

Jirau-Bernal v. Agrait,
____________
______

37 F.3d 1, 4 (1st Cir. 1994).

Here,

there

disputes

which

are

significant

of

material

fact

preclude a finding on summary judgment for defendants.

Defendants'

evidence

that

their

decision

was

motivated by a concern for departmental efficiency that would

have

resulted in

the same

personnel

plaintiffs' political affiliation

from

conclusive.

action regardless

is both

disputed and

of

far

First, Cappas's finding that the existence

of the Managerial

the

Coordinators interrupted the free

agency hierarchy

reported

to

the

was based

on

Secretary, not

Regional Directors.

Plaintiffs

conclusion into doubt

a view

to

her

flow of

that plaintiffs

subordinates, the

have successfully

put this

through their sworn statements

to the

____________________

their upward mobility in the agency thwarted in very concrete

ways.

Here, plaintiffs say

members.

Rutan
_____

Amendment rights

their duties were assumed by NPP

expressly discussed
of employees

left in

See Rutan, 497 U.S. at 73.

___ _____

-1717

the

effect

on First

such dead-end

jobs.

contrary.

Second, plaintiffs, in their affidavits, say that

their duties and

responsibilities have

been transferred

new aides to the Regional Directors associated with the

If

this is

true, it

"efficiency"

undercuts

calls into

rationale,

as

the

question the

addition

of

to

NPP.

Department's

new

aides

any argument that the positions were eliminated to

save departmental resources.

Of course, defendants'

contention that plaintiffs'

demotions were the result of a valid concern for departmental

efficiency and regularity -- even if political discrimination

was a

"substantial factor"

defense at trial.

show

that the

demotions

-- is

a viable

To establish that defense, defendants must

allegedly bona

were

decisions.

in the decision

sufficient

After Rutan,
_____

by

it

reasons underlying

themselves

is clear

that

the

if defendants

prevent

them from carrying out the department's policy, that

is

an

government's

the

demotions.

can be adequately served

dismissing certain high-level

their political

omitted).7

for

alone

would

"A

interest in securing employees who will loyally

implement its policies

or

reason

beliefs

justify

that

acceptable

political

to

the

thought

not

plaintiffs'

fide

views."

On the other

by choosing

employees on the

Rutan, 497
_____

basis of

U.S. at

74 (citations

hand, if defendants

can establish

____________________

7.

The

conduct

posture of
a

"changeover"

this

full-scale
or

case

makes

examination

"reorganization"

it

inappropriate

of

defense

the

to

so-called

established

by

-1818

that

plaintiffs opposed

actively

attempted

departmental policy

in fact

to

thwart

and that

it, that

could

they

be

sufficient to establish a Mount Healthy defense.

_____________

497

U.S.

effective

at

74

("A

government's

employees can be

See
___

interest

in

met by discharging,

Rutan,
_____

securing

demoting or

transferring staff members whose work is deficient.").

There

case, but not

appears to be

lurking in the

on stage, a suggestion by

if the plaintiffs were removed for

wings of this

the defendants that

political reasons, and if

their duties continued and were assigned to NPP members, that

those

duties

nevertheless

fall

within

the

Elrod-Branti
_____ ______

exception because those duties are sensitive enough to make a

political

defendants

their

affiliation

requirement

appropriate.

However,

did not raise the Elrod-Branti exception issue in

_____ ______

responsive pleading

or in

their

motion for

summary

judgment.

The district

exception

but did

court

mentioned

despite the defendants'

not resolve the

rested its

decision

established

a prima

issue.

on its

the Elrod-Branti
_____ ______

failure to articulate it,

Rather, the

view

facie case.

district court

that plaintiffs

The issue

had

has not

not

been

____________________

Agosto-de-Feliciano, 889 F.2d

___________________
However, we can say that,

at 1220-22 in light

after Rutan, a public employer may

_____

not assign tasks to supporters

of the party in power because

it believes, solely on the basis of their

that

of Rutan.
_____

party affiliation,

such employees will more loyally implement its policies

-- notwithstanding language in Agosto-de-Feliciano that might

___________________
be read to support such a decision.
889 F.2d at 1221.

-1919

See Agosto-de-Feliciano,
___ ___________________

fairly briefed on appeal.

on

appeal that

district court.

Cir. 1995).

is

have

not been

properly

See McAleer v. Smith, 57

___ _______
_____

raised before

the

F.3d 109, 115 (1st

Although the issue of the Elrod-Branti exception

_____ ______

somewhat related to

positions

This court does not decide issues

the Secretary's contention

that the

were illegally created in part because they should

have been classified as "confidential" positions under Puerto

Rico law, it is by no

Plumey,
______

means the same argument.

See
___

Roldan_______

115 F.3d at 64-65 (rejecting government's claim that

political affiliation requirement is permitted despite Puerto

Rico's classification of position as "confidential.").

Until the contours

reluctant,

as we

have

been

of the case

invited to

further analysis

of the effects

"changeover"

"reorganization"

or

are clear, we

do,

of Rutan
_____

to engage

on the

defense

as

are

in

so-called

outlined

in

Agosto-de-Feliciano, 889 F.2d at 1220-22.

___________________

Finally,

we

note

that,

if

plaintiffs

originally classified appropriately

as career civil

employees,

Due

their claims

under the

were

service

Process Clause

and

under

the constitution

independently

and

laws

of

Puerto

of their First Amendment claim.

reported to the Regional Directors,

apparently classified

Rico

survive

If plaintiffs

as they claim, they were

appropriately as career

employees and

are therefore protected against political discharge under the

civil service laws of Puerto

Rico.

-2020

See 3 L.P.R.A.
___

1301,

1331-1338.

establish

The

Puerto Rico

civil

protection against

Amendment.

of Puerto

249-250

Court

service

system

may,

that

of course,

provides

political discrimination

than the

greater

First

Plaintiffs may have claims under the Constitution

Rico as

well.

(Torruella,

of

legislature

Puerto

J.,

Rico

Cf.
___

Jimenez-Fuentes, 807
_______________

dissenting)

grants

F.2d at

(noting that

Supreme

protection

against

broad

political discrimination, perhaps broader than this circuit's

interpretation

of the

First Amendment);

Raffucci-Alvarado,
_________________

816 F.2d at 822-23 (Torruella, J., dissenting) (same).

Likewise,

because

of plaintiffs'

tenured

status

under Puerto Rico law, their summary demotions could raise

claim under the Due Process Clause if their appointments were

proper.

532,

See
___

542

public

Cleveland Bd. of Educ. v.

______________________

(1985)

employees

(guaranteeing

with

Loudermill, 470 U.S.

__________

procedural

property

interest

employment under state law); Rivera-Ruiz v.

___________

983 F.2d 332, 334 (1st

Rico

law, the

public

laws).

of

in

to

continued

Gonzalez-Rivera,
_______________

Cir. 1993) (noting that, under Puerto

existence of

sector employment

plaintiffs' appointments

protections

property right

is dependent

under Puerto

on

in continued

the legality

Rico's civil

of

service

That Due Process claim is not dependent on the merits

plaintiffs'

First Amendment

claims;

the

inquiries are

-2121

distinct.8

See
___

Nieves-Villanueva v.
_________________

Soto-Rivera, No.
___________

96-

1285, slip op. at 16 (1st Cir. 1997).

The

the

judgment of the district court is vacated, and

_______

case is remanded for further proceedings consistent with

________

this opinion.

____________________

8.

We

take the case

as we find

it -- with

defendants not

articulating a defense based on the Elrod-Branti exception -_____ ______

and so

we also do not delve into

a question, not briefed by

any of the parties, as to whether the Due Process analysis is

altered

in

any

reclassification
to

one

in

requirement,

which

way

if

defendants

may

validly

cause

of a position from a civil service position

political

and how,

under

affiliation
the laws

agency may accomplish this.

-2222

of

is

legitimate

Puerto Rico,

an