
USCA1 Opinion

	




          October 20, 1994      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1529                                       WALTER TORRES MALDONADO, ET AL.,                                Plaintiffs, Appellees,                                          v.                            JOSE CEDENO MALDONADO, ET AL.,                               Defendants, Appellants.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ___________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ___________________               Ortiz Ballester & Pagan on brief for appellants.               _______________________               Carlos A. Del Valle Cruz on brief for appellees.               ________________________                                  __________________                                  __________________                      Per Curiam.  Several transitory employees filed the                      __________            present     1983 action  claiming  their  contracts were  not            renewed for  politically discriminatory reasons  in violation            of  their First  Amendment rights.   Contending that  Orta v.                                                                  _______            Padilla  Ayala,  92  JTS  96  (1992),  established  that  the            ______________            contracts of transitory employees properly may not be renewed            even for politically discriminatory reasons without violating            any law,  defendants moved for summary  judgment on qualified            immunity  grounds.  The  district court  rejected defendants'            reading of the Orta decision and,  citing Cheveras Pacheco v.                           ____                       ___________________            Rivera Gonzalez,  809 F.2d  125 (1st Cir.  1987), where  this            _______________            court, in rejecting a  qualified immunity defense,  concluded            that a transitory employee  was protected within the confines            of the  Branti-Elrod line of  cases from a  politically based                    ______ _____            non-renewal, denied defendants'  motion for summary judgment.            Defendants have now appealed.                        It is important to  note that, unlike the situation            in Orta, the plaintiffs have not asserted any property rights               ____            in  their transitory  positions.   Rather, their  position is            that even if they have no property interest under Puerto Rico            law  in continued  employment after  the expiration  of their            contracts, nevertheless defendants  may not  constitutionally            refuse to  renew  their transitory  appointments  because  of            plaintiffs'    political    affiliation   unless    political            affiliation is  an appropriate job requirement.    Plaintiffs                                         -2-            are correct for the reasons we  explained in Cheveras Pacheco                                                         ________________            v. Rivera Gonzalez, 809 F.2d 125, 127-28 (1st Cir. 1987).  As            __________________            the  Otra  decision  did  not  expressly  address  any  First                 ____            Amendment claim  under the Elrod-Branti line of  cases, we do                                       _____ ______            not  agree with defendants' reading of that decision.  In any            event,  however,  federal  law governs  whether  an  employee            enjoys First  Amendment protection  from a  politically based            adverse  employment  action.   See Mariani-Giron  v. Acevedo-                                           ___ __________________________            Ruiz, 877 F.2d  1114, 1119  n. 7 (1st  Cir. 1989);  Santiago-            ____                                                _________            Negron v. Castro-Davila, 865  F.2d 431, 436 (1st  Cir. 1989);            _______________________            De  Abadia v. Izquierdo Mora,  792 F.2d 1187,  1195 (1st Cir.            ____________________________            1986).                      Defendants' attempt to distinguish Cheveras Pacheco                                                         ________________            on  the length  of  transitory employment--28  months in  the            present  case;  almost  six  years  in  Cheveras  Pacheco--is                                                    _________________            meritless.   As we  stated in  Figueroa v. Aponte-Roque,  864                                           ________________________            F.2d 947, 951 &  n. 7 (1st Cir. 1989),  "transitory employees            are   protected   from  politically   motivated  non-renewals            regardless of the  number of  years they have  served. . .  .            Although "a long-tenured `temporary'  employee `particularly'            enjoys  the protections  established in  Elrod and  Branti, a                                                     _____      ______            one-term   employee  also   is   protected   from   political            discharge."                      Appellees have  moved for sanctions  under Fed.  R.            App.  P. 38.  We agree with  appellees that this appeal is on                                         -3-            the  verge  of  frivolous.   Its  outcome  was controlled  by            settled law  explained in  the district court's  opinion, and            appellants have  failed to articulate  any reasonable  ground            for appeal.      We  thus will impose double costs under Fed.            R. App. P. 38.                      The  order denying  summary  judgment is  summarily            affirmed.   Loc.  R.  27.1.   Appellants'  motion  to  strike            appellees' request for sanctions is denied.  Double costs are            awarded under Fed. R. App. P. 38.                                         -4-
