            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.
January 25, 2017
          KAYATTA,   Circuit   Judge.    Ana    María   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.      Neither party claims any error in

that regard.   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 -
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 -
to the Market Conduct Division.            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      claims,    including    her     federal       political

discrimination        claims    for     damages,   declaratory         relief,     and

injunctive relief.          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     defense        raised    by   Weyne:      that        even    if   the

reorganization could be interpreted as an action directed at López

because    of   her    political      affiliation,     Weyne    was    entitled    to


                                         - 5 -
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.      See Cady v. Walsh, 753 F.3d 348, 358–59 (1st

Cir. 2014).   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.     Discussion

          Under   our    two-part    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 -
barred."   López-Quiñones v. P.R. Nat'l Guard, 526 F.3d 23, 25 (1st

Cir.   2008).      For   ease    of       reference,   we    refer    to   these   two

questions,      respectively,        as     the   "merits"    question      and    the

"reasonableness" question.            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.                      Like the

district   court,    then,      we    also    treat    the   merits    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 -
it is.       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      on

allegations about what [the official] actually believed."                    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       as

unlawful," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).                         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      the     particular    responsibilities      of    the   position       to

determine       whether    it    resembles      a    policymaker,     a    privy     to

confidential information, a communicator, or some other office


                                        - 8 -
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              classification       to   further     inform     our

analysis.        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.                               We do

so as well.         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     prepare   studies     and    conduct


                                                  - 9 -
investigations and research about the insurance industry."                          The

AFSI       Director   "[c]oordinates       with   federal,        local   and    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    qualified       for    protection     from

politically motivated removal.             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."                        Id.

at 45 (citing pertinent cases).            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     thirty         employees,    López-


       2
       The position of Deputy Commissioner is itself a trust
position. See P.R. Laws Ann. tit. 26, § 237(1).


                                       - 10 -
Quiñones,     526        F.3d    at     26-27;     an   administrative        aide      to    the

assistant director of a municipal agency, Cordero v. De Jesus-

Mendez,      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 -
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. al-

Kidd,       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 -
(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   position   fell   inside   the   First

Amendment's protective ambit.             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 -
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 -
