

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1701

                      MAGALY ROLDAN-PLUMEY,

                      Plaintiff - Appellant,

                                v.

                     HIRAM E. CEREZO-SUAREZ,
                PERSONALLY AND AS COMMISSIONER FOR
                    MUNICIPAL AFFAIRS, ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                                                  

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Selya and Stahl, Circuit Judges.                                                          

                                           

     Carlos A.  del Valle-Cruz,  with whom Juan  Rafael Gonz lez-                                                                           
Mu oz  and Gonz lez  Mu oz &amp;  Qui onez Tridas  were on  brief for                                                       
appellant.
     Sylvia    Roger-Stefani,   Assistant    Solicitor   General,                                      
Department  of Justice,  with  whom  Carlos Lugo-Fiol,  Solicitor                                                               
General and Edda Serrano-Blasini, Deputy Solicitor General,  were                                          
on brief for appellees.

                                           

                           June 4, 1997
                                           

          TORRUELLA,  Chief Judge.   On  May 4,  1994, Plaintiff-                    TORRUELLA,  Chief Judge.                                           

Appellant  Magaly Rold n-Plumey  ("Rold n") brought  this Section

1983  suit  against   Defendants-Appellees  Hiram   Cerezo-Su rez

("Cerezo"),  Commissioner of Municipal  Affairs for  Puerto Rico,

and Sandra Valent n ("Valent n"),  Director of the Legal Division

of the  Office of the Commissioner of Municipal Affairs ("OCMA"),

in their individual  and official capacities.   The suit  alleged

that appellees, in violation  of Rold n's First Amendment rights,

dismissed  her  from  her  position  of  Hearing  Examiner  (also

referred  to  as  Examining  Officer) because  of  her  political

beliefs.    The  district  court granted  appellees'  motion  for

summary  judgment on  the  ground that  party  affiliation is  an

appropriate  requirement  for the  effective  performance of  the

position of  Hearing Examiner  and, consequently, that  appellees

were  entitled to dismiss Rold n  on those grounds.   See Opinion                                                                   

and Order, March 5, 1996, at 10.  Having ruled on the merits, the

district  court did  not address,  inter alia,  whether appellees                                                       

were entitled to qualified immunity.

          In  contrast to  the  lower  court,  we find  that  the

inherent   duties  of   Rold n's  position  do   not  demonstrate

policymaking attributes sufficient to subject Rold n to discharge

based  on her  political  beliefs and,  accordingly, reverse  the

entry of summary judgment.   Moreover, having found cause  to set

aside the  judgment on the merits, we address appellees' argument

that they are entitled to qualified immunity and find it wanting.

                               -2-

                            BACKGROUND                                      BACKGROUND

          On  March  1, 1992,  Rold n  accepted  the position  of

Hearing Examiner with the Office of the Commissioner of Municipal

Affairs.  The OCMA is the main regulatory agency of Puerto Rico's

municipalities and is charged with uncovering, investigating, and

reporting   to  municipal   mayors  any  irregularities   in  the

municipalities'  management.   P.R.  Laws  Ann. tit.  21,    4909

(1995).  The office is further obligated to provide various forms

of "technical  and professional assistance to  the municipalities

relating  to  their organization,  administration,  functions and

operation."    Id.      4902.    The   Commissioner  developed  a                            

confidential and trust employee plan under which employees in the

OCMA were classified  in accordance with  the Puerto Rico  Public

Service Personnel Act, P.R. Laws Ann. tit. 3,   1301 et seq.  The                                                                      

plan, developed  by Cerezo's predecessor as  Commissioner, Ismael

Pag n-Colberg, designated the position  of "examining officer" as

a trust position.  According to this document, the OCMA positions

designated as  trust or  confidence positions were  only "[t]hose

positions whose holders intervene or collaborate substantially in

the formulation of public policy, which directly advise or render

direct  services  to  the  Commissioner  of  the  Office  of  the

Commissioner  of Municipal Affairs."   Def. Exh. IV  to Motion to

Summary Judgment.

          The  classification,   or  job  description,   for  the

position of "Examining Officer"  sets forth the position's duties

as follows:

                               -3-

          DUTIES OF POSITION

          Professional and technical work that requires
          great  knowledge  of the  principles  and the
          practice  of  law and  the ability  to direct
          research    procedures    leading    to    an
          adjudicative determination.

          1.   Holds  administrative hearings  required
               by the Autonomous Municipalities Act and
               any other necessary  one[s] to carry out
               the duties assigned to the Commissioner.
               Regulates  the   procedures  during  the
               [performance] of the same.

          2.   Takes  oaths  and  declarations,  issues
               summons for the appearance  of witnesses
               and the filing of reports, documents and
               other evidence necessary to solve cases.

          3.   Evaluates   evidence    and   comes   to
               conclusions of facts and law.

          4.   Carries  out  legal   studies  for   the
               solution of cases.

          5.   Issues reports with his  conclusions and
               recommendations to the Commissioner.

          6.   Carries   out  other   assigned  related
               duties.

Def. Exh. V to Motion for Summary Judgment.

          On November  4,  1992, Pedro  Rossell  ("Rossell "),  a

member  of  the  New   Progressive  Party  ("NPP"),  was  elected

governor.  In March  1993, Rossell  appointed Cerezo Commissioner

of  Municipal Affairs.  In April  1993, Cerezo appointed Valent n

to head the Legal  Division of the OCMA.  On  May 6, 1994, Rold n

received a dismissal letter effective that same date.

                        STANDARD OF REVIEW                                  STANDARD OF REVIEW

          We  review  the  grant  of summary  judgment  de  novo,                                                                          

viewing  the facts, and drawing all reasonable inferences, in the

                               -4-

light  most  favorable  to   the  non-movant,  here  Rold n,  and

affirming summary judgment only "if  no genuine issue of material

fact exists."   O'Connor v.  Steeves, 994 F.2d  905, 906-07  (1st                                              

Cir. 1993).

                            DISCUSSION                                      DISCUSSION

I.        Political Discharge Claim          I.        Political Discharge Claim

          We  turn  first to  the grounds  on which  the district

court granted summary judgment to Cerezo and Valent n.  More than

twenty  years ago,  a plurality  of the  Supreme Court  held that

governmental employers  may not discharge an  employee because of

her political affiliation without showing a governmental interest

sufficiently  vital to  outweigh  the employee's  First Amendment

right to association.   Elrod v. Burns, 427 U.S. 347, 355-56, 362                                                

(1976).   The plurality  found that the  government's interest in

effective  implementation of  its  policies can  be achieved  "by

limiting patronage dismissals to policymaking positions."  Id. at                                                                        

372.  Justice Stewart's concurrence gave the Court a majority for

the proposition that  nonpolicymaking, nonconfidential  employees

should not be discharged on the basis of their political beliefs.

Id. at 374-75 (Stewart, J., concurring in the judgment).             

          The Court next attempted to define the contours  of the

prohibition on political  discharge in Branti v. Finkel, 445 U.S.                                                                 

507 (1980).   Instead  of applying Elrod's  policymaking inquiry,                                                  

the Branti Court relied upon a finding that political affiliation                    

is not  an appropriate requirement for  the effective performance

of the position  of assistant  public defender.   Id. at  518-19.                                                               

                               -5-

The  Branti Court  again,  however,  imposed  the burden  on  the                     

governmental body  seeking dismissal:   "[U]nless  the government

can demonstrate 'an  overriding interest'  'of vital  importance'

requiring that a person's private beliefs conform to those of the

hiring  authority,  his  beliefs  cannot be  the  sole  basis for

depriving  him of  continued public  employment."  Id.  at 515-16                                                                

(citations omitted).  Of fundamental importance  is the idea that

"conditioning continued public employment on an employee's having

obtained support  from a particular political  party violates the

First  Amendment   because  of  'the  coercion   of  belief  that

necessarily flows from the knowledge that one must have a sponsor

in the dominant  party in order to retain one's  job.'"  Rutan v.                                                                        

Republican Party  of Illinois,  497 U.S.  62, 70 (1990)  (quoting                                       

Branti, 445 U.S. at 516).                

          More  recently,   in  Rutan  v.  Republican   Party  of                                                                           

Illinois,  the  Court  extended  the reach  of  the  Elrod-Branti                                                                           

doctrine  to  politically  motivated  promotions,  transfers, and

recalls.  Rutan, 497 U.S. at  70.  The Court reaffirmed the heavy                         

burden on government employers to show that the use of "patronage

practices are  narrowly  tailored  to  further  vital  government

interests."  Id. at 74.  The Court reiterated that                          

          [a]   government's   interest   in   securing
          effective   employees   can    be   met    by
          discharging, demoting,  or transferring staff
          members   whose   work  is   deficient.     A
          government's  interest in  securing employees
          who  will loyally implement  its policies can
          be   adequately   served   by   choosing   or
          dismissing  certain  high-level employees  on
          the basis of their political views.

                               -6-

Id.      Unless  a   position   is  one   that   requires  policy             

implementation,  or  is  confidential  in nature  (a  claim  that

appellees here  do  not make  and  to which  we need  not  allude

hereafter),  a  government  employer  must  rely  on  traditional

discharge criteria.

          Based on  this case law,  this circuit has  developed a

two-part test  for discerning  when discharge based  on political

affiliation is permissible.   First, we inquire into  whether the

discharging agency's functions entail "'decision making on issues

where  there is room for political disagreement on goals or their

implementation.'"   O'Connor,  994 F.2d  at 910  (quoting Jim nez                                                                           

Fuentes  v. Torres  Gaztambide,  807 F.2d  236, 241-42  (1st Cir.                                        

1986)).    If so,  we  next  determine  "whether  the  particular

responsibilities   of  the   plaintiff's  position,   within  the

department or agency, resemble  those of a policymaker, privy  to

confidential information,  a communicator,  or some  other office

holder  whose  function is  such  that  party  affiliation is  an

equally  appropriate  requirement  for  continued  tenure."   Id.                                                                           

(internal quotation marks omitted); see also Jim nez Fuentes, 807                                                                      

F.2d at  241-42.  In reviewing this  second prong, we have looked

to "relative pay, technical  competence, power to control others,

authority  to   speak  in   the  name  of   policymakers,  public

perception,  influence   on   programs,  contact   with   elected

officials, and responsiveness to partisan  politics and political

leaders."  O'Connor, 994 F.2d at 910.                             

          A.   Agency functions                    A.   Agency functions

                               -7-

          In  her opposition  to  appellees'  motion for  summary

judgment, Rold n conceded that OCMA  is an agency whose functions

require  "'decision making  on  issues where  there  is room  for

political disagreement  on goals or their  implementation.'"  Id.                                                                           

For the purposes of this appeal, therefore, we consider the first

prong satisfied.

          B.   Whether the position involves policymaking                    B.   Whether the position involves policymaking

          Under  the second  prong, the  question is  whether the

responsibilities of the position  of Hearing Examiner resemble "a

policymaker, a privy to confidential information, a communicator,

or some other  office holder  whose function is  such that  party

affiliation  is an  equally  appropriate requirement."    Jim nez                                                                           

Fuentes, 807  F.2d at 242.   We have held  time and again  that a                 

court,  in  making this  determination, is  to  look only  to the

duties inherent to the position and is not to consider the actual

functions  of either past or present officeholders.  See id.; see                                                                           

also O'Connor, 994 F.2d  at 911 ("[T]he analysis must  focus upon                       

the  'powers  inherent  in a  given  office,  as  opposed to  the

functions performed by a  particular occupant of that office.'");

Cordero  v. Jes s-M ndez, 867 F.2d  1, 9 (1st  Cir. 1989); Romero                                                                           

Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir. 1987); De                                                                           

Abadia  v. Izquierdo Mora, 792  F.2d 1187, 1192  (1st Cir. 1986).                                   

We consider the  job description  to be the  best, and  sometimes

dispositive,  source  for  determining  the  position's  inherent

functions.  See Ortiz Pi ero v. Rivera Arroyo, 84 F.3d 7, 13 (1st                                                       

Cir. 1996)  (stating that  "written, signed job  descriptions may

                               -8-

provide  highly probative  evidence  as  to the  responsibilities

inherent in a particular  government position, and may even prove

dispositive"); Romero Feliciano, 836  F.2d at 3 (recognizing that                                         

"we  have considered the OP-16  dispositive in .  . . Puerto Rico

political   discrimination  cases");   M ndez  Palou   v.  Rohena                                                                           

Betancourt,  813  F.2d  1255,  1260 (1st  Cir.  1987)  ("Whenever                    

possible, we will  rely upon  this document  because it  contains

precisely  the  information  we need  concerning  the  position's

inherent powers . . . .").

          The  Hearing  Examiner  job  description  details  five

specific responsibilities and designates a further responsibility

to "carr[y] out other  assigned related duties."  The  five well-

defined responsibilities make clear  that the position of Hearing

Examiner leaves  little room for free-ranging actions independent

of their limited scope.  The narrow duties require application of

technical  and  professional  skills   in  evaluating  facts  and

researching  law.  They are not  broad and open-ended, and do not

leave   room    for   discretionary   policymaking    or   policy

implementation.  Nor  are they "hazily  defined."  See Alfaro  de                                                                           

Quevedo v. De  Jes s Schuck, 556  F.2d 591, 593 (1st  Cir. 1977).                                     

The  narrowly circumscribed  duties permit  the  officeholder the

opportunity to  identify and  investigate irregularities,  but do

not convey  power or discretion to take any action as a result of

these findings.  Indeed, in their brief, appellees recognize that

"plaintiff's position as described  in her job description seemed

                               -9-

to involve technical and  professional skills."  Appellees' Brief

at 20.

          In addition, the limited nature of the position differs

substantially  from most  of those  positions for  which  we have

previously  found  political  affiliation  to  be  an appropriate

requirement.   For instance,  in  Agosto-de-Feliciano v.  Aponte-                                                                           

Roque,  889 F.2d  1209, 1213  (1st Cir.  1989), we  reviewed four               

positions  to   determine   the  appropriateness   of   political

affiliation.   The job description  of the first  position listed

twenty-six  responsibilities   including  supervising  employees,

representing  the  regional  director  at  public  meetings,  and

overseeing the  respective office  when the director  was absent.

Id.   The second position  under review required the officeholder             

to  act as a liaison  between the Department  of Public Education

and private  schools, to  coordinate a  teaching  program in  the

project school, and  to direct a  regionwide committee on  school

organization.   Id.  The third position consisted of twenty-three                             

responsibilities,  requiring the  officeholder  to survey  needs,

develop  work  plans,  evaluate  curricula  and  training, manage

vocational education, and  supervise student organizations.   Id.                                                                           

The  position  also  included   a  supervisory  component.    Id.                                                                           

Finally,  the  job description  for  the  fourth position  listed

twenty-one    broadly    stated    duties,    including    budget

administration, oversight of  programs relating to school  needs,

transportation,   and   student  services,   and   evaluation  of

personnel.   Id. at  1214-15.  These  high-level positions,  with                          

                               -10-

their  numerous,  loosely defined  responsibilities,  allowed the

officeholders considerable power and discretion in the management

of  Puerto  Rico's  Department   of  Education.    They  included

oversight,  evaluation,  and  revision  of programs  as  well  as

supervision of personnel.  Some  allowed the officeholder to  act

in  place  of  department  heads.    The  circumscribed  list  of

responsibilities of  the position of Hearing  Examiner grants the

officeholder no such broadly defined powers.

          In O'Connor v.  Steeves, we found that  the position of                                           

superintendent,  which gave  the officeholder  responsibility for

the  administration of  all  departments of  city government  and

required  policymaking,  acting  as  a  city  representative, and

supervising personnel, all  duties absent here, was one for which

political   affiliation   was   an   appropriate   consideration.

O'Connor, 994 F.2d at 911.                  

          In the seminal  political discrimination case,  Jim nez                                                                           

Fuentes  v. Torres Gaztambide, 807  F.2d 236 (1st  Cir. 1986) (en                                       

banc),  this court reviewed the claims of plaintiffs who had been

discharged  from their  positions  as Regional  Directors of  the

Puerto Rico Urban  Development and Housing  Corporation ("CRUV"),

attached  to the  Department  of Housing  of the  Commonwealth of

Puerto Rico.   Id. at 237-38.   Approximately 3,000 of the  3,600                            

CRUV  employees served under the disputed positions.  Id. at 243.                                                                   

The  job  descriptions  consisted  of  twenty  duties,  including

directing, planning, and  supervising the operational  activities

of the entire region, developing and implementing new programs or

                               -11-

discerning  ways   to  improve  existing  programs,   serving  as

spokesperson  for  the  Executive and  Associate  Directors,  and

controlling  the  region's budget,  all  duties  of a  high-level

policymaker.   Id. at 244;  see also Raffucci  Alvarado v. Zayas,                                                                          

816  F.2d 818, 821-22 (1st Cir. 1987) (finding position of Social

Services Regional Director  sufficiently entailed policymaking to

render political affiliation relevant).

          The position  at issue here is  readily distinguishable

from those at issue in Jim nez Fuentes and O'Connor, and  is more                                                             

akin to the position  of Internal Auditor, which we  addressed in

Cordero v.  Jes s-M ndez,  867  F.2d  1 (1st  Cir.  1989).    The                                  

position of Internal Auditor did not require the  officeholder to

engage in  policymaking decisions, but instead  required that the

auditor investigate  the financial records of  a municipality and

make  a report to  the Mayor  and Comptroller.   Id. at  18.  The                                                              

internal  auditor had no authority to correct the mistakes he was

charged to investigate.  Id.                                      

          As in  Cordero, the position at issue here is that of a                                  

mere  "technocrat."  Id.; see also De Choudens v. Government Dev.                                                                           

Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir. 1986).  A Hearing                             

Examiner is charged only  with investigating and holding hearings

into   possible  irregularities   in  municipal   functions,  and

reporting  them to the  Commissioner, in whom  authority rests to

take action.  Considering  these five enumerated duties, we  find

that they require  technical and professional  skills and do  not

provide  discretion  to  formulate  or  implement  policy.    See                                                                           

                               -12-

generally De Choudens, 801 F.2d at 9-10.  Accordingly,  political                               

affiliation is not an appropriate requirement for the position.

          Moreover,  a review  of the  indicia we  have typically

considered material to this determination further suggests that a

Hearing Examiner is not  a policymaker.  With regard  to relative

pay, the salary for Hearing Examiner is the fifth  highest of the

13  levels on the OCMA pay scale, not including the Commissioner.

The documents submitted  on summary judgment do not  indicate the

number of employees filling each level of the scale.  Thus, while

the position  is ranked  fifth,  a significant  number of  actual

employees  may be paid more than the Hearing Examiner.  Moreover,

the  trust  classification  is  fifth-tier,  among  eleven  trust

positions in  the OCMA.   Although  the position  is of a  quasi-

adjudicative  nature, it  does not  require that  an officeholder

possess  a  law  degree.   The  position  carries  no supervisory

responsibilities.     The  duties  neither  require   any  public

appearances nor  grant authority  to speak on  the Commissioner's

behalf.   Contact with  elected officials  appears to  take place

only in  the context of a hearing, and in no other context does a

Hearing   Examiner  act   as   a  public   spokesperson  for   or

representative of her agency.

          Appellees   attempt  to   maneuver   around   the   job

description's  inherent duties by  pointing to item  number 61 on

the  job  description, claiming  that  the  possibility of  being

                                                  

1   Item number 6  states that the  office holder "[c]arries  out
other assigned duties."

                               -13-

assigned  related tasks  transforms  the position  into one  with

broad  powers.    The  summary  judgment  record  indicates  that

appellees  presented  two  exhibits,   in  addition  to  the  job

description, to  support this  contention.   The first of  these,

Exhibit VI, appears to be a listing of correspondence received by

the  Office  of  Legal  Affairs  containing  inquiries  regarding

various  municipal concerns.   These  inquiries were  assigned to

Rold n for resolution.  The  last date on which any of  the tasks

on this list were assigned to  Rold n is September 24, 1992.  The

other exhibit, Exhibit VII,  suggests that, as of July  28, 1992,

Rold n was assigned by Cerezo's predecessor to monitor the status

of amendments to the Autonomous Municipalities Act.  We note that

appellees did  not argue  to the  district court,  as they do  on

appeal,  that the duties  set forth in  Exhibits VI  and VII were

assigned as "other [] related duties" pursuant to item six of the

job  description, and thus fall  within the scope  of the court's

analysis  of  "inherent  duties."     Nevertheless,  because  the

district court took into  consideration the documents in Exhibits

VI and VII, we address appellees' contention here.

          In reviewing the nature of the tasks assigned to Rold n

by Cerezo's  predecessor,  it  is  apparent that  they  were  not

related to  the inherent  duties of  Hearing Examiner.   Instead,

these exhibits are of the very type we have consistently held are

not  to be  considered in  the process  of determining  whether a

position  entails  policymaking.   We look  only to  the inherent

duties  of  the position  under review  and  do not  consider the

                               -14-

actual  tasks performed by a  present or past  officeholder.  See                                                                           

O'Connor, 994 F.2d at 911; Jim nez Fuentes, 807 F.2d at 242.  The                                                    

inherent   duties  of   a   Hearing  Examiner   relate  only   to

investigating and administering hearings regarding irregularities

and  do  not  encompass  providing legal  advice,  or  analyzing,

developing, or  advising the  Commissioner on proposed  or actual

legislation.   We  certainly cannot  allow a  catch-all provision

such as that found in  Item 6 to convert all assigned  tasks into                                                      

inherent  duties.   We  conclude that  the  duties set  forth  in

Exhibits VI and  VII, which  were assigned to  Rold n during  her

tenure  as a  Hearing  Examiner, are  not  tasks related  to  her

position and thus cannot be properly characterized as assigned in

accordance  with item number 6.  They are actual duties performed

by a past officeholder, and not inherent duties.

          We  recognize that,  in past  cases, we have  granted a

modicum of deference to the Puerto Rico legislature's designation

of  a particular  position as  "trust"  or "confidential."   See,                                                                          

e.g.,   Figueroa-Rodr guez v.  L pez-Rivera, 878 F.2d  1478, 1481                                                     

(1st Cir. 1989); Juarbe-Angueira  v. Arias, 831 F.2d 11,  14 (1st                                                    

Cir. 1987); Raffucci Alvarado, 816  F.2d at 822; Jim nez Fuentes,                                                                          

807 F.2d at 246.  We accorded deference because

          (a)  Puerto Rico's  own civil  service system
          permits  a fairly  small number  of positions
          (no more than 25 per agency) to be classified
          as confidential (i.e., potentially subject to                                         
          politically-based discharge),  P.R. Laws Ann.
          tit. 3,    1351 (1978 &amp; Supp.  1987); (b) the
          personnel law bases  the classification of  a
          confidential position on criteria  similar to
          those   enumerated   in  Elrod   and  Branti,                                                                
          (whether  the  job  involves "formulation  of

                               -15-

          public  policy," P.R.  Laws  Ann.  tit. 3,   
          1350,  or  "direct  service  to  the  head or
          subhead of  the agency  which require  a high
          degree  of  personal  trust," P.R.  Personnel
          Bylaws:     Areas  Essential  to   the  Merit
          Principle,      5.2  (1976));   and  (c)  the
          legislators   and  administrators   are  more
          familiar  with the  issues and  subjects that
          potentially may  affix a particular  job at a
          particular time with a "political charge."

Figueroa-Rodr guez, 878  F.2d at 1481.   Nevertheless, we decline                            

to  grant deference to the  designation of Hearing  Examiner as a

"confidential" position  here, when the plan  that designated the

position   as  confidential  took  into  consideration  the  five

specific  duties discussed  above and  merely suggested  that the

Hearing Examiner "has broad  and considerable freedom to exercise

initiative  and his own judgment in the performance of his work."

See Def. Exh. IV to Motion for Summary Judgment.  We have already             

considered  the job duties of  the position above  and found them

insufficient to indicate that the position entails  policymaking.

Having  "freedom  to  exercise .  .  .  [one's]  judgment in  the

performance  of  [one's] work"  does  not go  beyond  our earlier

consideration  of the  position and  does not  support appellees'

contention  that   the  position   involves  the  use   of  broad

discretion.  In addition,  that the same plan labels  drivers and

at  least  two tiers  of  secretaries  as  trust or  confidential

employees suggests that these categories are overly broad.

          Based on the summary judgment record, we hold that  the

position  of  Hearing  Examiner  is   not  one  for  which  party

affiliation is an appropriate requirement.

II.       Qualified Immunity          II.       Qualified Immunity

                               -16-

          In their request for  summary judgment below, appellees

contended,  as they  do  on appeal,  that  they are  entitled  to

summary  judgment  on  the  basis  of  qualified  immunity.   The

doctrine  of  qualified  immunity  protects  defendants in  their

individual  capacities   from   liability  for   money   damages.

"Qualified  immunity  shields  government   officials  performing

discretionary functions  from civil  liability for money  damages

when  their  conduct  does   not  violate  'clearly  established'

statutory  authority   or  constitutional   rights  of   which  a

reasonable person would have known."  Nereida-Gonz lez v. Tirado-                                                                           

Delgado, 990  F.2d 701, 704 (1st  Cir. 1993).  In  the context of                 

political discrimination charges,  "a defendant enjoys 'qualified

immunity'  as long as the  job in question 'potentially concerned

matters  of partisan political  interest and involved  at least a

modicum  of policymaking  responsibility, access  to confidential

information,  or  official communication.'"   Figueroa-Rodr guez,                                                                          

878 F.2d at 1480  (quoting M ndez-Palou v. Rohena-Betancourt, 813                                                                      

F.2d 1255, 1259 (1st Cir. 1987)).

          In  earlier  political discrimination  cases,  we found

defendants entitled to qualified immunity because their allegedly

unconstitutional actions  took place prior to  the development of

clearly established  law  in  this area.    See,  e.g.,  Nereida-                                                                           

Gonz lez, 990 F.2d at 704 (granting defendants qualified immunity                  

because  prior to  1989,  a period  that encompassed  defendants'

allegedly  unconstitutional demotions and  transfers, it  was not

clear  whether Elrod and Branti applied); Valiente v. Rivera, 966                                                                      

                               -17-

F.2d 21, 23 (1st  Cir. 1992) (same); N  ez-Soto v.  Alvarado, 918                                                                      

F.2d  1029 (1st  Cir.  1990)  (state  of  the  law  in  political

discrimination  cases  was  not  clearly  established  in  1985);

Figueroa-Rodr guez,  863 F.2d at  1040 (recognizing that although                            

Elrod and Branti clearly prohibited discharge of non-policymaking                          

state  employees for  partisan reasons,  this circuit had  yet to

delineate the scope of  positions for which political affiliation

was  appropriate); De Abadia, 792 F.2d at 1190 (noting that Elrod                                                                           

and Branti marked a dramatic departure from prior law and further                    

observing  that an  "official cannot be  expected to  predict the

future  course of constitutional  law" (internal  quotation marks

omitted)).  This case is different.  Appellees  discharged Rold n

on May  6, 1994.   The  contours of  the law regarding  discharge

based  on party affiliation grew  much clearer in  the late 1980s

and early 1990s.  By 1993,  this circuit had decided two waves of

political discrimination cases.  At the time appellees discharged

Rold n, this circuit's law regarding discharge based on political

discrimination was indeed clearly established.

          To be sure,  the law  may still be  blurred around  the

edges.    But this  is  not a  borderline  case.   In determining

entitlement to  the qualified  immunity defense in  the political

discrimination  context, we look only to the inherent duties of a

position and  ask whether the defendant  could reasonably believe

the  position in  question was  one that  "'potentially concerned

matters of partisan  political interest and  involved at least  a

modicum  of policymaking  responsibility, access  to confidential

                               -18-

information,  or  official communication.'"   Figueroa-Rodr guez,                                                                          

878 F.2d at 1480.  We have already found that the inherent duties

of   the   position   were   limited   to   discrete,   technical

responsibilities that  did  not involve  policymaking  or  policy

implementation.     We  do  not  believe   that  appellees  could

reasonably believe that the five specified duties of the position

in any way provided Rold n with discretion to devise or implement

policy.  Assigning  her with  a duty related  to those  functions                                                      

would not expand her discretion in the position.

          As discussed above,  the additional  tasks assigned  to

Rold n,  on  which  appellees  rely, were  not  inherent  to  the

position  nor can they be bootstrapped  into the position through

the device  of item  number 6.   That  the defendants might  have

considered  the additional duties  assigned to Rold n  as part of

the duties inherent in  the position of Hearing Examiner  appears

unreasonable based on the  record at the summary  judgment stage.

We  note that  should  defendants muster  convincing evidence  at

trial to show  that the  function of a  typical Hearing  Examiner                                                         

includes following the status  of legislation and providing legal

assistance directly  to the municipalities and  that the position

has  traditionally been  perceived as  encompassing  these tasks,

they may or may not be entitled to qualified immunity.   They are

not, however, entitled to  summary judgment on qualified immunity

grounds.

          Appellees suggest that  one of the  cases on which  the

district  court relied, Alfaro de Quevedo v. De Jes s Schuck, 556                                                                      

                               -19-

F.2d 591 (1st Cir.  1977), is analogous  to the instant case  and

warrants the opposite conclusion.  The district court also relied

on  another case that  may seem to involve  a position similar to

that  of a Hearing Examiner.  See Gonz lez-Gonz lez v. Zayas, 878                                                                      

F.2d  1478  (1st  Cir.   1989)  (en  banc).    Those   cases  are

distinguishable on two grounds.

          First, the  positions at issue in  those cases involved

considerable  discretion  to  make  and implement  policy.    The

position  at  issue in  Alfaro de  Quevedo,  the Director  of the                                                    

Office   of   Criminal  Justice,   required,   inter   alia,  the                                                                     

officeholder to advise  "the Secretary of Justice  on all pending

legislation affecting  crimes and  law enforcement," id.  at 593,                                                                  

draw up proposed legislation, prepare an annual budget, supervise

the  staff of  the  Office of  Criminal  Justice, and  prepare  a

Proposed  Code of  Criminal Justice  for Puerto Rico.   Id.   The                                                                     

position "gave [the officeholder] a broad discretion to carry out

hazily  defined purposes and to render advice to the Secretary in

an area  that is far  from noncontroversial."   Id. at 593.   The                                                             

position at  issue in Gonz lez-Gonz lez was that  of the Director                                                 

of the Board  of Appeals  of Puerto Rico's  Department of  Social

Services.  See Gonz lez-Gonz lez, 878 F.2d at 1482.  The position                                          

duties  were, among others, to  supervise 31 employees who worked

for  the  Board,  to  establish procedures  to  hold  hearings on

appeals, to analyze and  make final decisions on all  appeals, to

prepare  an annual budget, and  to recommend rule  changes to the

Directors  of  the various  Social Services  programs.   Id.   In                                                                      

                               -20-

addition to any adjudicatory  tasks, this position entailed broad

administrative,  policymaking, and  supervisory duties.   Id.  at                                                                       

1483.   As our analysis indicates,  the broad discretion inherent

in these duties is not present in the case before us.

          Second,  Gonz lez-Gonz lez was dismissed  from his post

in  1985 and  Alfaro  de Quevedo  resigned  in  1973.   When  the

defendants in those cases ousted the plaintiffs, the state of the

law  with respect to political  firings was poorly  defined.  The

state of the  law at the time  of the discharge in  this case had

developed  markedly since  the  two opinions  relied upon  below.

Because  we must  consider whether  appellees violated  a clearly

established  constitutional right  of  which a  reasonable person

would  have been aware, at the time the adverse employment action

was taken, the outcome of  these two cases is not controlling  on

the issue of qualified immunity.

          We also recognize that in prior  cases, we have granted

qualified immunity partially because a defendant might mistakenly

rely on the position's status  as "confidential" or "trust" under

the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit.

3,   1301  et seq.   See, e.g., Figueroa-Rodr guez,  878 F.2d  at                                                            

1481  ("[I]n the context of qualified immunity, the fact that the

Commonwealth  government had  classified  a particular  job as  a

trust or confidence position, makes it more difficult to say that

a  Puerto Rican official should have known that the law 'clearly'

forbids dismissal.");  Juarbe-Angueira,  831 F.2d  at 14  (same);                                                

Raffucci  Alvarado,  816 F.2d  at 821-22  (same).   Based  on our                            

                               -21-

discussion of the manner  in which this and other  OCMA positions

were classified,  we do  not believe  that defendants  could have

reasonably relied  on this designation in  determining that their

discharge of Rold n  for political reasons was consonant with her

constitutional rights.

                            CONCLUSION                                      CONCLUSION

          For the foregoing reasons, we reverse and remand to the                                                  reverse     remand                                                                    

district court for proceedings consistent with this opinion.

                               -22-
