
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1688                            VICTOR SANTIAGO-MATEO, ET AL.,                               Plaintiffs - Appellees,                                          v.                              MIGUEL A. CORDERO, ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                _____________________               Jorge Rodr guez-Micheo, with  whom Benicio S nchez-La  Costa               ______________________             _________________________          and Goldman Antonetti & C rdova were on brief for appellants.              ___________________________               Carlos A. del Valle-Cruz for appellees.               ________________________                                 ____________________                                    March 20, 1997                                 ____________________                    TORRUELLA, Chief Judge.   Eight employees of the Puerto                    TORRUELLA, Chief Judge.                               ___________          Rico Electric Power Authority ("PREPA") filed a section 1983 suit          against  PREPA  and  Miguel  A.  Cordero  ("Cordero"),  Executive          Director of PREPA.   See 42 U.S.C.   1983.   Plaintiffs-appellees                               ___          allege  that  they  were  demoted from  their  positions  as area          engineers and  assistant chief of  supply, in violation  of their          First Amendment right to freedom of association, because of their          political affiliation  with the  Popular Democratic  Party (PDP).          In June  1994, defendants-appellants  filed a motion  for summary          judgment with respect to  the seven plaintiffs who had  been area          engineers.  The motion  for summary judgment was premised  on two          different  theories.   First, it  alleged that  plaintiffs' First          Amendment claim is without merit because political affiliation is          an  appropriate requirement  for the  position of  area engineer.          Second,  it  argued  that  co-defendant Cordero  is  entitled  to          qualified immunity.  Defendants'  motion for summary judgment was          denied  by the  district court  on March  29, 1996.   Defendants-          appellants now  appeal  with respect  to  co-defendant  Cordero's          entitlement to  summary judgment on  qualified immunity  grounds.          Finding that we lack jurisdiction, we dismiss the appeal.                    Public officials alleged to have committed civil rights          violations  are  entitled  to  raise  the  defense  of  qualified          immunity.    The  defense  is  not  available,  however,  if  the          official's  conduct violates  a  federal right  that was  clearly          established  at  the time  of the  infringement.   See  Harlow v.                                                             ___  ______                                         -2-          Fitzgerald,  457 U.S.  800, 818-19 (1982);  Stella v.  Kelley, 63          __________                                  ______     ______          F.3d 71, 73 (1st Cir. 1995).                    Because the doctrine of qualified  immunity is intended          to  shield government officials from trial as well as from damage          awards, the defense may be asserted  in a pretrial motion and, if          that  motion  is  rejected,  immediate appellate  review  may  be          available.   See  Siegert v.  Gilley, 500  U.S. 226,  232 (1991);                       ___  _______     ______          Mitchell v. Forsyth,  472 U.S. 511, 530 (1985);  Guzm n-Rivera v.          ________    _______                              _____________          Rivera-Cruz, 98 F.3d 664, 666-67 (1st Cir. 1996); Stella, 63 F.3d          ___________                                       ______          at 73.                    In  Johnson v.  Jones,  __ U.S.  __,  115 S.  Ct.  2151                        _______     _____          (1995), the  Supreme Court held  that "a  defendant, entitled  to          invoke a  qualified-immunity defense,  may not appeal  a district          court's summary  judgment order insofar as  that order determines          whether or not the  pretrial record sets forth a  'genuine' issue          of fact  for trial."    Id. at  2159.   In  Johnson, a  plaintiff                                  ___                 _______          brought suit against five police officers, claiming that they had          used excessive force in arresting him.  The district court denied          a  motion  for  summary  judgment based  on  qualified  immunity,          finding that  there were  issues of  material fact  sufficient to          defeat summary judgment.  The Seventh Circuit held that it lacked          jurisdiction and dismissed the appeal.  The Supreme Court granted          certiorari and held that no appellate jurisdiction exists where a          defendant  appeals a  denial  of summary  judgment  based on  the          grounds that there exist genuine issues of material fact.  Id.                                                                     ___                                         -3-                    This court  dealt with  a  similar issue  in Stella  v.                                                                 ______          Kelly.  In Stella,  former members of the Zoning Board of Appeals          _____      ______          for  the Town of Tewksbury, Massachusetts,  alleged that they had          been removed  from the board as  a result of votes  they had cast          while  on the board.   Stella, 63  F.3d at 72-73.   The complaint                                 ______          consisted  of two allegations -- first, that their firing was the          result of their voting patterns and,  second, that this infringed          a  constitutionally protected free speech right.  Id.  This court                                                            ___          noted that under Johnson:                           _______                      a district court's pretrial  rejection of                      a  proffered  qualified immunity  defense                      remains   immediately  appealable   as  a                      collateral  order to  the extent  that it                      turns on a pure issue of  law . . . .  On                      the  other  hand,   a  district   court's                      pretrial   rejection   of   a   qualified                      immunity   defense  is   not  immediately                      appealable to the extent that it turns on                      either  an  issue  of  fact  or an  issue                      perceived by the district  court to be an                      issue of fact.                                        * * *                      The bottom  line, then, is simply this: a                      summary  judgment order  which determines                      that the  pretrial  record sets  forth  a                      genuine issue of  fact, as  distinguished                      from  an  order  that determines  whether                      certain  given  facts demonstrate,  under                      clearly established law,  a violation  of                      some  federally  protected right,  is not                      reviewable on demand.          Id. at 74.          ___                    The instant  case is controlled by  Johnson and Stella.                                                        _______     ______          The district  court's Order  denying the summary  judgment motion          reads, in part:                                         -4-                      Upon  review  of the  parties' documents,                      this Court finds  that defendants are not                      entitled to judgment as  a matter of law.                      Defendants   have   not   been  able   to                      establish the lack of a  genuine issue of                      material     fact     regarding     their                      discriminatory conduct towards plaintiffs                      .  .  . .    [T]his  Court believes  that                      defendants'  conduct towards  plaintiffs,                      if  proven  true,  could   constitute  an                      actionable claim under   1983.          Order of the District Court, March 29, 1996.                    The Order  leaves little doubt that  the district court          determined that "the pretrial record  set[] forth a genuine issue          of  fact."   Stella, 63  F.3d at  74.   In  light of  Johnson and                       ______                                   _______          Stella, the district  court's finding that there  exist issues of          ______          material  fact  is sufficient  for us  to  conclude that  we lack          appellate jurisdiction.                    For the foregoing reasons, we dismiss the appeal.                                                  _______                                         -5-
