
USCA1 Opinion

	




        June 5, 1992             ____________________        No. 91-2277        No. 91-2332                             IRIS VIOLETA VALIENTE, ET AL.,                                Plaintiffs, Appellees,                                          v.                        HON. RAMON LUIS RIVERA, ETC., ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Reina Colon  De Rodriguez,  Acting Solicitor  General, and  Carlos            _________________________                                   ______        Lugo-Fiol, Assistant Solicitor General, on brief for appellants.        _________            Jesus Hernandez Sanchez  and Hernandez Sanchez  Law Firm, on brief            _______________________      ___________________________        for appellees.                                 ____________________                                 ____________________                      Per Curiam.  Claiming qualified immunity, defendant                      __________            moved for summary  judgment.  Without reaching the  merits of            the  immunity claim,  the  district court  denied the  motion            because it was  "filed on the  eve of trial"  and "comes  too            late."  Defendant has appealed.  For reasons which follow, we            do not agree that the motion was filed too late.                                          I                      Eight plaintiffs, employees of the  municipality of            Bayaman,  filed  a  complaint  in October  1986  against  the            municipality and its mayor.  The lead plaintiff, Mrs. Violeta            Valiente,  stated that she was a member of the same political            party  as  the  mayor,  but,   because  she  had  refused  to            discriminate on the basis of political affiliation, the mayor            had classified her and  her associates (the other plaintiffs)            as dissenters and had  discriminated against them.  According            to  the complaint, Mrs. Violeta  Valiente had been demoted in            1985, moved to  a small  room next  to the  toilet, given  no            work, and  harassed.  Other plaintiffs had been denied raises            granted  to   employees  with   less  experience  and   fewer            credentials, had been transferred to work places more distant            from their homes, had  suffered a cut in hours,  and had been            harassed and persecuted.                      After initial settlement negotiations failed, trial            was  originally  scheduled  for   March  13,  1990,  but  was            postponed to July  31, 1990.   On July  26, 1990,  defendants                                         -2-            filed  their  request for  jury  instruction,  which included            instruction on qualified  immunity.  The July 31,  1990 trial            date was  vacated when  the parties  informed the  court that            promising  settlement negotiations  were underway.   When, by            mid-September,  no  settlement  had  materialized,  trial was            rescheduled for May  7, 1991.  On  May 2, 1991, several  days            before  trial,  defendants sought  a  three-month continuance            because of  the  mayor's health  problems.   The  motion  was            granted the next day,  but no new trial date  was immediately            set.                      On May  10, 1991, defendant mayor  filed the motion            which is the subject of this appeal.  He requested permission            to file  a motion  for  summary judgment  based on  qualified            immunity.   Accompanying the motion was  a lengthy memorandum            arguing that  in 1985 and 1986 when  the acts in question had            taken  place,  the  law  was  not  clearly  established  that            politically  motivated personnel  actions short  of discharge            were   constitutionally  proscribed.    The  motion  was  not            immediately  acted upon.  On May 28, trial was rescheduled to            December 2, 1991.  On November 4, 1991,  the court denied the            May 10, 1991 request  to file a motion for  summary judgment.            The court stated as follows:                      Denied.  Although a pre-trial  motion for                      summary judgment is  the best  instrument                      for  disposing  of  a qualified  immunity                      defense, this motion, filed on the eve of                      trial,   comes  too  late  in  this  1986                      litigation.  Given the  Court's congested                                         -3-                      trial calendar, to allow this filing will                      inevitably lead  to a continuance  of the                      trial.            Defendant mayor has appealed from that order.                                          II                      We reject  plaintiffs'  contention that  the  order            refusing permission to file a motion for summary  judgment is            not appealable.  Orders denying pre-trial claims of qualified                                    _______            immunity are immediately  appealable as collateral orders  in            accordance with Mitchell v. Forsyth, 472 U.S. 511 (1985).  To                            ________    _______            be sure, the  district court  here did  not deny  defendant's                                                        ____            claim to qualified immunity on the merits, but rather refused            to address the merits of the motion at all.  Nevertheless, as            an asserted right  not to stand  trial is lost  no less by  a            court's refusal to entertain a pre-trial immunity claim as by            an erroneous denial  of it on the merits, we  see no basis --            at least not  in the circumstances of the present case -- for            distinguishing  between the two  for appellate jurisdictional            purposes.  See Zayas-Green  v. Casaine, 906 F.2d 18,  23 (1st                       ___ ___________     _______            Cir. 1990) ("Without question,  defendants had . . .  a right            to  appeal from  the  district court's  announced refusal  to            entertain any further pre-trial motions raising the qualified            immunity  defense.").   We  have  jurisdiction  to hear  this            appeal.                                         III                                         -4-                      Contrary   to  the   court's  ruling,   the  motion            requesting permission  to file a motion  for summary judgment            was not filed  on the eve of trial.   Rather, when the motion            was filed, the court  had already vacated the May  trial date            and   granted   defendants'   request   for   a   substantial            continuance.  As the  new trial date was not  until December,            the  motion ended up having been filed almost seven months in            advance of  trial.  Seven months in advance is not the eve of            trial.   There was  sufficient time for the  court to rule on            the summary judgment request.1                      Moreover,  it   is  clear   that   to  the   extent            defendant's motion  asserted qualified immunity  from damages            liability for politically  motivated personnel actions  short            of   dismissal,  the   motion  should   have  been   granted.            Government officials are not liable for monetary damages in              1983 suits unless their actions violate  "clearly established            statutory  or constitutional  rights  of which  a  reasonable            person  would have  known."   Harlow v. Fitzgerald,  457 U.S.                                          ______    __________                                            ____________________            1.  One   reason   why   the   court  may   have   mistakenly            characterized  the  summary  judgment motion  as  having been            filed on  the  eve  of  trial  is  that  defendant's  summary            judgment  motion, ostensibly  drafted before  the motion  for            continuance  had been  granted,  itself stated  it was  being            filed on the eve  of trial.   Defendant sought to excuse  the            late  filing by pointing to a two  and a half month old First            Circuit  opinion  and  arguing  that only  recently  had  the            applicable  law crystallized.  We  would be faced  with a far            different  case  had  the  district  court  not  granted  the            continuance.  Once the  continuance was granted, however, the            summary judgment request  was no longer last minute  and must            be viewed in the context of the new trial schedule.                                         -5-            800, 818 (1982);  Anderson v.  Creighton, 483  U.S. 635,  639                              ________     _________            (1987).  As we have  explained in other cases similar  to the            present involving actions short of discharge, not until Rutan                                                                    _____            v. Republican  Party of Illinois, 110 S.Ct.  2729 (1990), was               _____________________________            decided  did it  become clearly  established that  the Elrod-                                                                   ______            Branti   constitutional   prohibition   against   politically            ______            motivated firings applied to other personnel actions, such as            promotions,  transfers,  and hirings.   See  Castro-Aponte v.                                                    ___  _____________            Ligia-Rubero,  953  F.2d  1429  (1st  Cir.  1992)  (qualified            ____________            immunity for 1986 transfer decision); Roque-Rodriguez v. Lema                                                  _______________    ____            Moya,  926 F.2d 103, 106-07 (1st Cir. 1991) (plaintiff denied            ____            promotion from  1985 to 1989; qualified immunity); Nunez-Soto                                                               __________            v. Alvarado, 918 F.2d 1029, 1030 (1st Cir. 1990)  (demotion).               ________            In  the  present  case, plaintiffs  complained  of  demotion,            changes  in  duties,  transfers,  reduced  hours,  and  raise            denials predating  their  1986  complaint.   As  it  was  not            clearly established at that time that such personnel actions,            even  if politically  motivated,  violated the  constitution,            defendant  mayor  is  entitled  to  qualified  immunity  from            damages liabilitywith respectto these FirstAmendment claims.2                                            ____________________            2.  In their appellate brief, various plaintiffs assert other            possible claims:  1) denial of procedural due process in that            no hearing  preceded the demotion or  other adverse personnel            actions,  2)  constructive discharge  in  violation  of First            Amendment rights, and 3)  violation of First Amendment rights            in  that plaintiffs  were  harassed because  of their  speech            concerning  unhealthy  conditions.    We do  not  now  decide            whether all these claims were raised below or whether summary            judgment  with respect to any  of them is  proper, but rather                                         -6-                      Pursuant to First  Circuit Rule 27.1, the  November            4,  1991 order is vacated  to the extent  it denied defendant            mayor's  motion requesting  permission to  file a  motion for            summary judgment, and the case is remanded with directions to            grant summary  judgment to  defendant mayor  on the  issue of            qualified  immunity from  damages liability  with respect  to            plaintiffs'  claims that defendant violated plaintiffs' First            Amendment  rights  by  subjecting  them  to  adverse  working            conditions  short  of   discharge  (actual  or  constructive)            because of their political affiliation.                      Vacated and remanded.                      ____________________                                            ____________________            leave  these matters to be addressed in the first instance by            the district court.                                         -7-
