
USCA1 Opinion

	




          September 10, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1227                            DINHORA QUINTERO de QUINTERO,                                Plaintiff, Appellant,                                          v.                             AWILDA APONTE-ROQUE, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                              _________________________               Luis F. Abreu Elias on brief for appellant.               ___________________               Anabelle Rodriguez, Solicitor General, and Vannessa Ramirez,               __________________                         ________________          Assistant Solicitor General, Department  of Justice, on brief for          appellees.                              _________________________                              _________________________                     SELYA,  Circuit Judge.  This is an appeal from an order                    SELYA,  Circuit Judge.                            _____________          of  the United States District  Court for the  District of Puerto          Rico  granting  summary  judgment  in the  defendants'  favor  on          qualified immunity grounds.   Because the plaintiff has failed to          show   that  the   defendants'   actions  violated   any  clearly          established  right assured by federal constitutional or statutory          law, we affirm.          I. BACKGROUND          I. BACKGROUND                    Plaintiff-appellant   Dinhora   Quintero  de   Quintero          (Quintero), a citizen of Colombia, was hired on September 2, 1986          by the Department  of Public Education (DPE)  of the Commonwealth          of Puerto Rico  as a speech therapist.   Ten days later, Quintero          was unceremoniously cashiered.  Her superiors justified       the          firing by reference to  a local statute making United  States (or          Puerto Rico) citizenship an indispensable requirement for teacher          qualification in the Commonwealth's public schools.1                    In May of 1987,  appellant sued.  Invoking 42  U.S.C.            1983 (1988), she alleged discrimination  on the basis of national          origin in  violation of the federal Constitution.   Her complaint          named  as defendants  three ranking  DPE officials.   Both  sides          moved  for summary judgment.  The district court issued a Pullman                                                                    _______          stay in early 1989, see Railroad Comm'n  v. Pullman Co., 312 U.S.                              ___ _______________     ___________                                        ____________________               1The statute in question  provides that all "[c]andidates to          obtain a teacher's certificate" shall "be . . . citizen[s] of the          United States of America or of Puerto Rico."  P.R. Laws Ann. tit.          18,    264(1) (1989).   It  is undisputed  that the  position for          which  Quintero  was  hired requires  certification.    Moreover,          Quintero does  not contend  that the position  differs materially          from other teaching positions in the public schools.                                          2          496 (1941),  because an arguably related case  was pending before          the Puerto Rico Supreme Court.  That case was decided on June 30,          1989.  See  Paz Lisk v.  Aponte Roque, 89  JTS 69 (1989).   After                 ___  ________     ____________          mulling  the  matter for  a  considerable  period  of  time,  the          district  court   entered  summary  judgment  in   favor  of  the          defendants.  This appeal followed.          II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD                    Summary  judgment  is  appropriate  if  "the pleadings,          depositions, answers to interrogatories,  and admissions on file,          together  with  the affidavits,  if any,  show  that there  is no          genuine issue as to  any material fact and that the  moving party          is entitled to a judgment as a  matter of law."  Fed. R. Civ.  P.          56(c).   A  party  seeking summary  judgment  bears  the  initial          responsibility  of suggesting the  absence of a  genuine issue of          material  fact.   Celotex  Corp. v.  Catrett,  477 U.S.  317, 323                            ______________     _______          (1986); Garside  v. Osco Drug,  Inc., 895  F.2d 46, 48  (1st Cir.                  _______     ________________          1990).   The  opposing party  "must  then document  some  factual          disagreement sufficient to deflect brevis disposition."   Mesnick                                             ______                 _______          v. General  Elec. Co., 950 F.2d  816, 822 (1st Cir.  1991), cert.             __________________                                       _____          denied,  112 S.  Ct. 2965  (1992).   When, as  in this  case, the          ______          material  facts are  undisputed,  the question  on  a motion  for          summary judgment becomes  one of  law.  Appellate  review of  the          district court's ensuing decision is plenary.   See id.; Garside,                                                          ___ ___  _______          895 F.2d at 48.                    In appraising summary judgments,  we are not limited to          the  district court's reasoning.   Instead, the  court of appeals                                          3          may "affirm the  entry of summary  judgment on any  independently          sufficient ground made manifest by the record."  United States v.                                                           _____________          One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).          ___________________________          III.  QUALIFIED IMMUNITY          III.  QUALIFIED IMMUNITY                    Government officials exercising discretionary authority          are  entitled to  qualified immunity  in respect to  claims under          section 1983 "insofar as  their conduct does not  violate clearly          established  statutory  or  constitutional   rights  of  which  a          reasonable person would  have known."  Harlow  v. Fitzgerald, 457                                                 ______     __________          U.S. 800, 818 (1982).  To be "clearly established," the "contours          of  the  right  must  be sufficiently  clear  that  a  reasonable          official would  understand that what  he is  doing violates  that          right."  Anderson v.  Creighton, 483 U.S. 635, 640 (1987).  Thus,                   ________     _________          the  operative inquiry  is  not whether  the defendants  actually          abridged the  plaintiff's constitutional rights.  The fact that a          violation  occurred  is  not  enough  to  pierce  the  shield  of          qualified immunity  "unless it is further  demonstrated that [the          defendants']  conduct  was   unreasonable  under  the  applicable          standard."   Davis v. Scherer,  468 U.S. 183,  190 (1984); accord                       _____    _______                              ______          Amsden v. Moran, 904 F.2d 748, 751 (1st Cir. 1990), cert. denied,          ______    _____                                     _____ ______          111 S. Ct. 713 (1991).                      In  essence, then,  the defense  of qualified  immunity          offers  sanctuary not only  to government officials  who act with          impeccable propriety, but  also to  those who err  but could  not          reasonably  have  understood  that  their  actions   infracted  a          prospective  plaintiff's federally  assured  rights.   See, e.g.,                                                                 ___  ____                                          4          Amsden, 904 F.2d at 752; Brennan v. Hendrigan, 888 F.2d 189,  192          ______                   _______    _________          (1st Cir.  1989); see also  Collins v. Marina-Martinez,  894 F.2d                            ___ ____  _______    _______________          474,  478  (1st  Cir. 1990)  (noting  that  "a  plaintiff who  is          entitled  to prevail on the merits is not necessarily entitled to          prevail on the issue of qualified immunity").   Definitively, the          touchstone of an inquiry  into qualified immunity is whether  the          state actor's behavior was objectively reasonable, as a matter of          federal law,  at  the  time  and  under  the  circumstances  then          obtaining.  See Amsden, 904 F.2d at 751.                      ___ ______                    A court embarking on an inquiry into qualified immunity          must  invariably  determine  whether  some  right emanating  from          federal constitutional or statutory law was "clearly established"          at the  time of  the alleged violation.   See id.  at 752.   This                                                    ___ ___          examination sometimes calls into  question whether the  plaintiff          has  asserted a  violation of  a right  at all.   See  Siegert v.                                                  ______    ___  _______          Gilley, 111 S.  Ct. 1789,  1793 (1991); Morales  v. Ramirez,  906          ______                                  _______     _______          F.2d  784, 787  (1st  Cir. 1990).    When a  defendant moves  for          summary  judgment on the basis  of qualified immunity,  it is the          plaintiff's burden to demonstrate the infringement of a federally          assured right.  See Castro-Aponte v. Ligia-Rubero, 953 F.2d 1429,                          ___ _____________    ____________          1430  (1st  Cir. 1992).    If  she fails  to  do  so, the  movant          prevails.  Id. at 1431.                     ___          IV.  ANALYSIS OF THE EQUAL PROTECTION CLAIM          IV.  ANALYSIS OF THE EQUAL PROTECTION CLAIM                    In  the  case  at   hand,  appellant  claims  that,  by          terminating her employment solely  on the basis of  alienage, the          defendants violated a clearly established right which should have                                          5          been  apparent to  reasonable  school officials  in September  of          1986.  She points to  the federal Constitution's Equal Protection          Clause  as the principal source  of the claimed  right.  Whatever          one may  think of  the local  statute  in question,  which is  no          longer  in  force,  we  believe  appellant's  view of  the  Equal          Protection Clause  has been largely discredited  by Supreme Court          case law that we are bound to respect.                                          A.                                          A.                                          __                    Although  it has  long been  held that  resident aliens          fall  within  the purview  of  the Equal  Protection  Clause, see                                                                        ___          Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Examining Bd. of Eng'rs          _______    _______                        _______________________          v.  Flores  de  Otero,  426  U.S.  572,  602  (1976);  Graham  v.              _________________                                  ______          Richardson,  403 U.S. 365, 371  (1971); Truax v.  Raich, 239 U.S.          __________                              _____     _____          33, 39  (1915); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), the                          _______    _______          rule is  not without its  recognized exceptions.   A State    and          Puerto  Rico,  for purposes  of the  exception discussed  in this          opinion,  is to be  treated at least  as generously as  a State            can,  "in an  appropriately defined  class of  positions, require          citizenship as a qualification for office" without departing from          the constitutional  restraints of  the  Equal Protection  Clause.          Sugarman  v. Dougall,  413  U.S. 634,  647  (1973).   States  are          ________     _______          permitted  to define these classes  so as "to  preserve the basic          conception  of a political  community."   Dunn v.  Blumstein, 405                                                    ____     _________          U.S.  330, 344  (1972).   Exempt classes may,  therefore, include          "persons   holding  state   elective  or   important  nonelective          executive, legislative, and judicial positions, for officers  who                                          6          participate directly in the  formulation, execution, or review of          broad public policy  perform functions  that go to  the heart  of          representative  government."  Sugarman, 413 U.S. at 647.  The key                                        ________          is  whether a plausible nexus  exists between citizenship and the          demands of a particular  position in the public sector.   Phrased          another way,  a State may  justify its exclusion of  aliens "by a          showing of some rational relationship between the interest sought          to be  protected  and the  limiting  classification."   Foley  v.                                                                  _____          Connelie, 435 U.S. 291, 296 (1978).  To find if this governmental          ________          function exception applies in a given instance, a reviewing court          must  ask  whether  the "position  in  question  .  . .  involves          discretionary  decisionmaking,  or  execution  of  policy,  which          substantially affects members of  the political community."  Id.;                                                                       ___          accord Cabell v. Chavez-Salido, 454 U.S. 432, 440-41 (1982).          ______ ______    _____________                                          B.                                          B.                                          __                    In respect to teachers, the case  of Ambach v. Norwick,                                                         ______    _______          441  U.S. 68  (1979), provides  luminous  authority.   There, the          Court examined a New  York law allowing exclusion of  aliens from          employment  as public  school teachers.   In  determining whether          teaching  in public  schools constitutes a  governmental function          within the  sweep  of  the  Sugarman doctrine,  the  Court  first                                      ________          acknowledged the  importance of public schools  in our democracy:          "'Today,  education is  perhaps  the most  important function  of          state and local governments. . . .  It is the very foundation  of          good citizenship.'"  Id. at 76 (quoting Brown  v. Board of Educ.,                               ___                _____     ______________          347 U.S.  483, 493 (1954)).  The Court then focused on the nature                                          7          of public education and the degree of responsibility thrust  upon          teachers in the due performance of their mission.  See id. at 78-                                                             ___ ___          80.  Teachers,  Justice Powell  wrote, "play a  critical part  in          developing  students'  attitude  toward  government  and  [their]          understanding of  the role of citizens  in our society."   Id. at                                                                     ___          78.  He also observed that a teacher possesses wide discretion as          to  how course material is  communicated to students;  that he or          she  inevitably serves as a  role model; and  that, "through both          the  presentation of course materials and the example he [or she]          sets,  a teacher has an opportunity to influence the attitudes of          students   toward  government,  the   political  process,  and  a          citizen's social responsibilities."  Id. at 79.                                                 ___                    On this  basis, the court concluded  that public school          teachers,  as  a class,  come  within  the governmental  function          exception and, therefore, "the  Constitution requires only that a          citizenship requirement applicable to  teaching in public schools          bear  a rational  relationship to  a legitimate  state interest."          Id. at  80.  The  Court concluded that  the New York  statute was          ___          narrowly tailored  to serve its purpose because  it excluded only          those  aliens who  refused to  obtain United  States citizenship.          Id. at 80-81.          ___                                          C.                                          C.                                          __                    In light  of  Ambach, we  think that,  in September  of                                  ______          1986,  it  did  not   violate  any  clearly  established  federal          constitutional  right for  an education  official to  terminate a          teacher's employment in conformity  with a statute barring aliens                                          8          from holding teaching positions.   While it is at  least arguable          that  the Puerto Rico statute  has a somewhat  broader reach than          its  New York counterpart, approved in Ambach,2 the Court has not                                                 ______          hesitated  to uphold  statutes  that barred  aliens totally  from                                                              _______          serving in certain government positions.  See,  e.g., Cabell, 454                                                    ___   ____  ______          U.S. at  441-42 (deputy probation  officers); Foley, 435  U.S. at                                                        _____          299-300 (state troopers); see also Cervantes  v. Guerra, 651 F.2d                                    ___ ____ _________     ______          974,  981-82 (5th  Cir. 1981)  (holding  that a  community action          agency's bylaws  excluding aliens  from service  on the  board of          directors  did not deny equal protection); cf. Campos v. FCC, 650                                                     ___ ______    ___          F.2d  890,  893-94  (7th  Cir.  1981)  (holding  that  a  statute          prohibiting the  Federal Communications Commission  from granting          commercial radio  operators' licenses  to aliens did  not violate          the Fifth Amendment's Due Process Clause).   Moreover, the Ambach                                                                     ______          Court  itself  suggested  that  a  State  may  exclude  from  its          political  functions "all persons who have not become part of the                                ___          process  of self-government."   Ambach, 441 U.S.  at 74 (emphasis                                          ______          supplied).   We  conclude,  therefore, that  the defendants  were          entitled to qualified immunity as a matter of law.          V.  MISCELLANEOUS ARGUMENTS          V.  MISCELLANEOUS ARGUMENTS                    We  pause briefly  to  address  two  other  contentions          advanced by the  appellant.  First, Quintero asseverates that her          discharge  was  actionable  under  42 U.S.C.     1983  because it                                        ____________________               2Whereas aliens not yet eligible for citizenship were exempt          from the New York statute considered by the Ambach Court, see 441                                                      ______        ___          U.S. at  70,  Puerto Rico's  statute  prohibits all  aliens  from                                                          ___          obtaining certification.  See P.R. Laws Ann. tit. 18,   264(1).                                    ___                                          9          transgressed the Puerto Rico Constitution and, thus, transgressed          federal  law.   We disagree.   The  notion that  the  Puerto Rico          Constitution should be considered a federal law for  this purpose          flies  in the teeth of this court's earlier opinions.  See, e.g.,                                                                 ___  ____          United  States v. Quinones, 758  F.2d 40, 42-43  (1st Cir. 1985).          ______________    ________          By the same  token, the  fact that the  Puerto Rico  Constitution          itself prohibits discrimination on the basis of alienage does not          assist  appellant.  A federal court may not order state officials          to conform their behavior  to state law.  Pennhurst  State School                                                    _______________________          and Hospital  v. Halderman,  465 U.S.  89, 106  (1984).   To  the          ____________     _________          extent  that appellant seeks relief based on Puerto Rico law, her          remedy, if any, lies in the courts of the Commonwealth.                     Appellant's   last   argument  questions   whether  the          district  court erred in  abstaining under Pullman.   That issue,                                                     _______          however, is  moot.  Whether or  not error inhered    a subject on          which we take no view   there is no effective relief  that we now          can provide.  Courts are without jurisdiction to address academic          questions.3   See In re  Stadium Management Corp.,  895 F.2d 845,                        ___ _______________________________          848  (1st Cir.  1990) (dismissing appeals  as moot  because court                                        ____________________               3We note in  passing that the  district court's decision  to          abstain was quite possibly an appealable event, see,  e.g., Moses                                                          ___   ____  _____          H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8-13          ______________________    _____________________          (1983) (concluding that, on  particular facts, a district court's          Pullman  stay order  was  appealable); Idlewild  Liquor Corp.  v.          _______                                ______________________          Epstein,  370 U.S.  713, 715  n.2 (1962)  (per curiam)  (order of          _______          district   court   staying  proceedings,   premised   on  Pullman                                                                    _______          abstention, held to  be immediately  appealable); Bridge  Constr.                                                            _______________          Corp.  v. City  of  Berlin, 705  F.2d 582,  583  (1st Cir.  1983)          _____     ________________          (discussing  the appealability  issue in  the context  of Pullman                                                                    _______          abstention), yet appellant eschewed  any attempt to effectuate an          immediate appeal.   Her effort  to raise the  issue at this  late          date is, therefore, especially unbefitting.                                          10          could provide no meaningful relief).          VI.  CONCLUSION          VI.  CONCLUSION                    We need go no further.  Although the plaintiff's plight          may  evoke a certain amount  of sympathy, the  undisputed fact is          that           her  dismissal  implicated no  breach  of  a clearly  established          federal constitutional or statutory right.                    The judgment below is summarily affirmed.  See 1st Cir.                    ________________________________________   ____________          R. 27.1.  Costs to appellees.          _______   __________________                                          11
