Luisa A. DE ABADIA, et al., Plaintiffs, Appellees, v. Hon. Luis IZQUIERDO MORA, et al., Defendants, Appellants.
Nos. 85-1505, 85-1520.
United States Court of Appeals, First Circuit.
Argued Sept. 13, 1985.
Decided May 27, 1986.
Rehearing and Rehearing En Banc Denied June 27, 1986.
Marcos A. Ramirez Lavandera with whom Marcos A. Ramirez and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendants, appellants.
Jose E. Fernandez-Sein with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, and ALDRICH and TORRUELLA, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.
This is our second installment in a saga of Puerto Rican politics following the gubernatorial election of November 1984. See Jimenez-Fuentes v. Torres Gaztambide, 779 F.2d 765 (1st Cir.1985) (since withdrawn and decision en banc now awaited). Plaintiff Luisa de Abadía, a member of the party (PNP) ousted in that election and former Executive Director of the Quality Control Program of the Department of Health, seeks monetary damages and injunctive relief under 42 U.S.C. § 1983 against Luis A. Izquierdo Mora, the recently appointed Secretary of the Department of Health, Guillermo Irizarry, the Administrator of the Department, and Sonia I. Colon Robles, the Department’s Personnel Director. She alleges that defendants violated her civil rights when they demoted her to a “career” position as a nutritionist within the Department. Specifically, she claims her demotion was due to her political affiliation, in violation of the strictures of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Defendants moved for summary judgment, arguing that the qualified immunity to which, as public officials, they were entitled, see Harlow v. Fitzgerald, 457 U.S. 800,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), precluded recovery in damages against them, whatever the outcome of the injunctive claim. The district court denied the motion, and defendants appeal.
Strictly, defendants filed two motions. The court disposed first of their motion to delay discovery until the motion for summary judgment was acted upon. In denying this, by written order, the court said that although it might agree that officials might be entitled to a qualified immunity in claims for damages in a proper case,
“this action is ... not an action seeking damages, but is also an action for injunctive relief against which the defendants may not be entitled to a claim of qualified immunity. Generally, the immunity doctrine is only applicable to actions for damages and cannot be employed in suits seeking declaratory or injunctive relief. Mitchum v. Foster, 407 U.S. 225 [92 S.Ct. 2151, 32 L.Ed.2d 705], Thus, the issue of immunity is not as clear cut as defendants argue in their motion to stay.”
Our thought that the court was here confusing the making of an early ruling as to immunity with the right to an immediate appeal, where both damages and an injunction were involved, is confirmed by its later, oral, ruling denying the motion for summary judgment. When the parties discussed the merits of that motion, and the court stated it would deny it, it added, “It is not appealable, anyway.” The following then occurred.
Mr. Ramirez: It is appealable if it denies qualified immunity, that’s one of the cases we cited on the motion.
The Court: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things.
Mr. Ramirez: It includes qualified immunity.
The Court: You raised it, but in an injunction I am not so sure that qualified immunity applies or not, as I . said in my order denying your request to stay.
Mr. Ramirez: Okay so Your Honor is denying then the—
The Court: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment.
This would seem to raise two points: whether it was correct to deny the motion for summary judgment, and whether an incorrect denial would be appealable.
We consider first whether denial of summary judgment on a claim of qualified immunity which the Court held in Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985), warranted an immediate appeal as a “final decision” in an action simply for damages, would not permit an immediate appeal if there were also a claim for injunctive relief. This question was left open in Mitchell, ante, at 2812, footnote 5. Before Mitchell, two circuits had divided on this question. The Fourth, Bever v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984) (2-1), denied appealability; Tubbesing v. Arnold, 742 F.2d 401 (8th Cir.1984), held contra. We have found no other cases since Mitchell, and it is a matter of first impression in this circuit. In Krohn v. United States, 742 F.2d 24 (1st Cir.1984), we held that the denial of qualified immunity is immediately appealable, but, as in Mitchell, ante, we had before us only a claim for damages. It seems to us, however, that the official’s concerns are the same when there is also a claim for an injunction and we conclude that the rule should extend to such cases.
As the Court said in Mitchell, qualified immunity is more than an immunity from money damages; it is “an immunity from suit ... [which] is effectively lost if a case is erroneously permitted to go to trial.” Id. at 2816 (emphasis in original). This is so, the Court said, because,
the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service.” Id. at 2815 (quoting Harlow, ante, 457 U.S. at 816, 102 S.Ct. at 2737).
Plaintiff argues that because defendants must proceed to trial in any event on the injunctive claim, there is little purpose in allowing them to avoid trial on damages. Plaintiff would quote Bever, ante, 724 F.2d at 1086-87, to the effect that,
[defendants remain] the principal defenders of the state’s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at trial. Whether or not they are immune from damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damages claims cannot avoid the diversion of their attention from official duties which the litigation will occasion.
In these circumstances, the question whether a denial of the immunity claims is appealable would appear to have little effect upon the willingness of responsible persons to serve in public office.
With due respect to the Fourth Circuit, we do not follow its reasoning. Its approach assumes that, for a public official, the threat of suit in his individual capacity is no worse than the threat of suit as representative of the state, and that the burdens of defending are no more onerous for the former than the latter. Although we recognize a public official’s obligation to defend a suit brought against him in his public capacity, the emotional, and perhaps physical, responsibility is not as great. “[T]he fear of being sued and held personally liable for damages is a far cry from a suit for reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties.” Bever, ante, 724 F.2d at 1091-92 n. 4 (Hall, J., dissenting). The threat may well include punitive, as well as actual damages. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473-74, 64 L.Ed.2d 15 (1980). Even if the actual time spent on the case away from his ordinary responsibilities were the same whether the damages claim was in or out, the official’s energy may be diverted from pressing public issues merely by the personal apprehension involved. At the least, the official sued for damages may have to retain, his own counsel at his own expense. Tubbesing, ante, 742 F.2d at 404 n. 3. In this litigious age all of these concerns are legitimate, and might easily deter individuals from taking public office.
Finally, the Fourth Circuit’s approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune.
In sum, we agree with the dissent in Bever, and with Tubbesing in all respects. We hold that an interlocutory appeal lies from the district court’s denial of summary judgment on a claim of qualified immunity from damages liability, even though a petition for injunctive relief is also pending.
Perhaps because of its erroneous views on the availability of an advance ruling on qualified immunity, the district court did not discuss whether defendants had made a sufficient showing of immunity. Instead, it denied summary judgment on the basis of “clear issues of fact,” but made little showing as to their extent beyond reference to the “controversy whether Mrs. Abadía was or was not a confidential employee, what her duties were ... [tjhat’s why I cannot decide by summary judgment.” Obviously if there was a determining question of fact regarding defendant’s qualified immunity defense, denial of the motion was correct. See Fernandez v. Leonard, 784 F.2d 1209, 1214, note 2 (1st Cir.1986).
There is a serious shortage of record. In their proposed pretrial order, the parties listed four disputed matters: 1) whether plaintiff’s position was “confidential”; 2) whether she was terminated for political reasons; 3) whether her position was “policy making”; and 4) whether “political loyalty is an appropriate requirement for the performance of the office.” Not all of these, however, are factual disputes upon which a determination of this motion for summary judgment depends.
To start with Nos. 1 and 3, Branti makes it clear that these classifications do not, per se, excuse political demotions. In Branti, the Court pointed out that labels such as “policymaking” or “confidential” are not what controls; rather, the relevant inquiry is whether “party affiliation is an appropriate requirement for the effective performance of the public office.” 445 U.S. 507 at 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574. Thus, issue Nos. 1 and 3 really merge into, and are not separate from, issue No. 4. At the same time, issue No. 2 does not have to be decided in defendants’ favor if they can succeed on No. 4. Furthermore, with respect to the plaintiff’s claim for damages, defendants need not win on the merits of issue No. 4 if they are entitled to the defense of qualified immunity. If the defendants make a sufficient showing of objective good faith, viz., that at the time of the demotion the law was not “clearly established” against their action, they are immune from suit. Harlow, ante, 457 U.S. at 818, 102 S.Ct. at 2738.
The first question is what is meant by “clearly established.” We consider it to be something less than requiring the public official to show that the principle of law did not exist, or there would be little left; there would be few cases on which officials could succeed. Only rarely do legislatures or courts introduce or change whole principles. More often, the process of change involves a sharpening of lines in the law’s grey areas, absent which there could reasonably be excusable mistakes. The case law supports this broad interpretation. See Harlow, ante, 457 U.S. at 815-19, 102 5. Ct. at 2736-39; Procunier v. Navarette, 434 U.S. 555, 560-65, 98 S.Ct. 855, 859-61, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 315-22, 95 S.Ct. 992, 997-1001, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 240-48, 94 S.Ct. 1683, 1688-92, 40 L.Ed.2d 90 (1974). In each of these cases, the Court laid heavy emphasis on the officials’ good faith, now defined by Harlow as objective good faith, as the criterion by which their actions are to be judged.
[T]he public interest requires decision and action____ Public officials ... who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity ... is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error than not to decide or act at all. Scheuer, ante, 416 U.S. at 241-42, 94 S.Ct. at 1689.
The good faith standard is the Court’s attempt to accommodate this need for discretionary action in areas of uncertainty with the protection of individual rights. “The official cannot be expected to predict the future course of constitutional law, but he will not be shielded from liability if he acts ‘with such disregard of ... clearly established rights that his action cannot reasonably be characterized as being in good faith.’ ” Procunier, ante, 434 U.S. at 562, 98 S.Ct. at 860, (quoting Wood, ante, 420 U.S. at 322, 95 S.Ct. at 1001) (citations omitted). These are concerns that apply just as forcefully to refinements or clarifications of existing doctrine as to radical changes of direction. The cases are also clear that the limits of good faith vary with “the scope of discretion and responsibilities of the office and all the circumstances as they appeared at the time of the action.” Scheuer, ante, 416 U.S. at 247, 94 S.Ct. at 1692. Where, as in this case, the official’s responsibilities are broad, he must be afforded a correspondingly broad range of discretion. While employment decisions may not appear initially to be the type of critical actions for which wide discretion is appropriate, at least at the higher levels, they are essential to the effective implementation of important government policies. See Elrod, ante, 427 U.S. at 367, 372, 96 S.Ct. at 2686-87, 2689.
On this basis, the question becomes, not whether defendants were in fact correct in believing party affiliation to be an appropriate requirement for plaintiff’s position, but whether, viewed objectively, they were reasonable in so believing. If this were an issue of subjective good faith, there might always be a question of fact; it is difficult to think there could ever be summary judgment. However, in the case of objective good faith, that a reasonable man in defendants’ position could have believed his conduct to be warranted, Malley v. Briggs, — U.S. -, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), may be a purely legal question, Mitchell at 2816-17 n. 9, so that it may be possible for an appellate court to rule that a defendant was reasonable as a matter of law. In that event, no purpose would be served by remanding to the district court. We believe this is such a case.
We start with the fact that Elrod and Branti marked a substantial change in the law. That “party affiliation be an appropriate job requirement” is much easier to say than to apply to the wide number of factual situations bound to occur in any government employing a large number of individuals. In the present state of the law, whatever may be the ultimate resolution on the merits — an issue not before us — of a particular case, may frequently not be easy to say in advance. Certainly at the top there must be political as well as other guidelines for the conduct of the Commonwealth’s Department of Health. Plaintiff, in accordance with governmental regulations, had executed her own official job description as Executive Director of the Department of Health. Plaintiff’s own responsibilities appear to mesh directly therein. With these compare Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95.
[I]t is ... clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.
Plaintiffs affidavit that her true employment was mundane, only, non constat that she had prepared a quite different job description, ante, on the asserted basis of her actual performance, might create an issue of fact ultimately on the merits, but to permit a proffer of an oral contradiction of her own signed description to create an issue of fact destroying defendants’ qualified immunity would emasculate the entire principle. No official would be free of suit.
We would add that an official should have at least a qualified right to regard an office as embracing the characteristics normal to its nature. If, in fact, the preceding governor withheld the duties embraced in plaintiff’s job description this should not foreclose his successor from naming a replacement with the higher duties. As the court said in Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir. 1985),
[The] focus is on the “inherent powers” of the office, not what any individual officeholder actually does.
Elrod and Branti require examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office. Ness v. Marshall, 660 F.2d 517, 522 (3d Cir.1981); Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591, 593 n. 4 (1st Cir.1977); Mummau v. Ranck, 531 F.Supp. 402, 405 (E.D. Pa.1982), affd, 687 F.2d 9, 10 (3d Cir. 1982). Thus, if an officeholder performs fewer or less important functions than usually attend his position, he may still be exempt from the prohibition against political terminations if his position inherently encompasses tasks that render his political affiliation an appropriate prerequisite for effective performance. In this court’s reiteration of the Branti formulation, we emphasized the functions of the office involved, not the officeholder: “The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decision making on issues where there is room for principled disagreement on goals or their implementation.” Nekolny v. Painter, 653 F.2d 1164,1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The unarticulated purpose behind this approach seems to be two-fold: first, to resolve the issue entirely in one proceeding, thereby relieving the courts of the burden of having to reexamine a certain position every time a new administration changes the mix of responsibilities bestowed upon the officeholder; and, second, to provide certainty to litigants.
Tomczak v. City of Chicago, 765 F.2d 633, 640-41 (7th Cir.1985). Therefore barring some radical transformation that goes to the core of the nature of the position, the district court need not concern itself with what past or present administrations have done with the office.
Indeed, to labor the point, the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiff’s favor. In Tubbesing v. Arnold a section 1983 discharge action depended upon the meaning of a “personnel policy manual.” In granting defendants qualified immunity the court said, 742 F.2d at 406,
Insofar as there is a disputed issue concerning the Manual, it involves the differing interpretations of Tubbesing and the Board. There is no dispute that the manual was in effect and no dispute about the contents of the Manual. The only question involves its interpretation, and this is a question for the court. Rather than precluding summary judgment, the fact that the application of the Policy Manual [to the directors] is disputed merely emphasizes that the law at the time of the conduct complained of was not clearly established. Even considering the evidence in the light most favorable to Tubbesing, and giving her the benefit of all reasonable inferences, we cannot conclude that there is a genuine issue of fact concerning whether Tubbesing had a “clearly established” right to continued employment.
So viewed we consider that, as a matter of law, defendants could reasonably believe, although on the merits they may ultimately prove to be mistaken, that the position of Executive Director of the Quality Control Program was one that allowed substantial responsibility for the development and implementation of high level policy as detailed in the job description, n. 3 ante, requiring a political outlook compatible with the Secretary’s; in short, that it was a position for which political affiliation was an appropriate requirement. Particularly it should not lie in plaintiff’s mouth, on the issue of defendants’ good faith, to say that they could not regard the job as being what she herself had described it to be. (See n. 5, ante.)
In sum, we are presently concerned not with the correctness of defendants’ determination, on the one hand, nor their subjective state of mind on the other, but of the “objective reasonableness” of their conduct. See Floyd v. Farrell, 765 F.2d 1, 4 & n. 1 (1st Cir.1985). We cannot say that the incorrectness of their conduct was clearly established. Harlow demands not prescience, but objective good faith. In some cases the application, vel non, of Elrod-Branti may be clear; in others it will be sufficiently fraught with uncertainty that an official could not be faulted for failing to apprehend.
We are not without sympathy for district judges who would like full guidance in this difficult area, but we must hesitate to write a textbook providing resolution of all future questions. For now we merely hold, finding appellants to be at least reasonable in believing the law was not clearly established, that they are entitled to qualified immunity from suit. We therefore vacate and remand with directions to grant summary judgment on the issue of personal liability and to dismiss the counts as to defendants’ personal damages.
. Conceivably there is a further question whether the court misspoke itself in the second paragraph. Qualified immunity is, of course, no defense to equitable relief. That is the cause of our problem.
2. The Fourth Circuit suggested that the interest in prompt results also militates against allowing these appeals: "[Defendants] might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.” Id. at 1087. This is a red herring, totally irrelevant to the overriding concern, expressed in Harlow and Mitchell, for the official’s right to avoid trial, and not merely to obtain an expeditious resolution of his immunity defense.
. With respect to issue No. 1, it is not apparent how it could be thought that plaintiff was other than a "confidential employee” as defined in the Puerto Rico Personnel Law. See P.R.Laws Ann. tit. 3, § 1350 (1978 & Supp.1984).
. Harlow is only the most recent pronouncement on qualified immunity. The doctrine has roots that antedate all of these cases, which simply developed its contours. Harlow’s significance lies in its rejection of the subjective good faith prong of the doctrine. 457 U.S. at 817-18, 102 S.Ct. at 2737-38.
. See, e.g.,
"2. Advise the Secretary, Governors’ Aids, and Legislators in the establishment of the philosophy, public policy, goals and objectives related to the health services.
“7. Recommend drafts of bills and bills directed to implement, amend or derogate provisions allowing for the development of the functions assigned to the Program; discuss them; process for the consideration of the Secretary, the Governor or the Legislature and give follow up to determine the action taken."
. "Detail the work you perform in the order of importance of the different tasks, starting with the most important____”
Our dissenting brother’s reference to plaintiffs separate count for damages under the Commonwealth statute, for which pendent jurisdiction is asserted, is to a matter not presently before us. However, the writer of this opinion, the matter having been raised, would call the district court’s attention to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67.