
USCA1 Opinion

	




          September 13, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1808                           ARNALDO MORALES-NARVAEZ, ET AL.,                               Plaintiffs - Appellants,                                          v.                              PEDRO J. ROSSELLO, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                                Lynch,* Circuit Judge,                                        _____________                         and Boyle,** Senior District Judge.                                      _____________________                                _____________________               Manuel Alvarado for appellants.               _______________               Vannessa Ram rez, Assistant Solicitor General, Department of               ________________          Justice, with whom Pedro A. Delgado-Hern ndez, Solicitor General,                             __________________________          Jos  L. Nieto and Dom nguez & Totti, were on brief for appellees.          _____________     _________________                                 ____________________                                 ____________________                                        ____________________          *  Judge  Lynch replaces  Senior Circuit Judge  Campbell who  has          recused himself and  has taken  no part in  the consideration  of          this  case.  Judge Lynch  has participated in  the decision based          upon the briefs, record, and a recording of the oral argument.          **  Of the District of Rhode Island, sitting by designation.                    BOYLE, Senior  District Judge.  This  case concerns the                    BOYLE, Senior  District Judge                           ______________________          transfers of the appellants from their positions in the Contracts          Office  within the  Office  of the  Governor  of Puerto  Rico  to          positions in another  department of the  Office of the  Governor.          The appellants, claiming that the transfers improperly were based          on their political associations and violated their procedural due          process rights, moved for a preliminary injunction returning them          to  their  original  positions.    The  district  court,  without          conducting  a hearing,  denied the  motion, concluding  that they          failed  to show both a likelihood of  success on the merits and a          threat of irreparable harm,  and that the harm caused  by denying          the  motion  would  not  outweigh  the  potential  harm   to  the          government of  Puerto Rico  if the  motion were  denied.  852  F.          Supp. 104, 115-16 (D. P.R. 1994).  Appellants  argue (1) that the          district court abused its discretion and legally erred by denying          the  preliminary  injunction, and  (2)  that  the district  court          should have conducted  an evidentiary hearing before  determining          the motion.  We conclude that the sparse record did not support a          preliminary  injunction.    We  do not  reach  appellants'  other          argument  because the interests of justice would not be served by          remanding the case for an evidentiary hearing on  the preliminary          injunction  when  trial on  the merits  should  be imminent.   We          affirm  the order of  the district  court, anticipating  that the          matter will be promptly scheduled for a trial on the merits.                                         -2-                                    I.  BACKGROUND                                    I.  BACKGROUND                    We   briefly   summarize    the   uncontested    facts.          Appellants,  Arnaldo  Morales-Narvaez  ("Morales"), Rosa  Ortega-          Torres ("Ortega"), and Isabel Mart nez-Camacho ("Mart nez"), were          employed  in the Contracts Office at the Executive Mansion of the          Governor  of Puerto  Rico.   Morales was  employed as  a contract          analyst, and  Ortega and  Mart nez were employed  as secretaries.          The three  appellants were  supporters of the  Popular Democratic          Party ("PDP").                    In  November  1992, the  New Progressive  Party ("NPP")          defeated   the  PDP   in   the  general   election.     The   NPP          administration,  and the  appellee NPP  administration officials,          assumed office in January  1993.  In March 1993,  appellants were          notified  that they  were  being transferred  from the  Contracts          Office to another division  of the Office of the  Governor, known          as Programa RED ("RED").                    Appellants  commenced  this action  under 28  U.S.C.             1983, 1985, and  1986.  In support of their  claims under   1983,          appellants  asserted  they  were  transferred  because  of  their          association  with PDP,  in violation  of their  rights under  the          First and Fourteenth Amendments to the Constitution of the United          States.  They  further asserted that  the circumstances of  their          transfers  violated   their   procedural  due   process   rights.          Appellants moved the court  for a preliminary injunction, seeking          return  to  their  former   positions.    Briefs  and  supporting                                         -3-          documents  were filed in support  of their motion.   Appellees in          turn filed opposing memoranda and supporting documents.                    The district court issued its Opinion and Order  on May          16, 1994, denying appellants'  motion.  The court's determination          was based primarily on its  conclusion that appellants failed  to          show  both a likelihood of success  on the merits of their claims          and a  threat of irreparable harm.   See 852 F.  Supp. at 110-12,                                               ___          114-15.                                   II.  DISCUSSION                                   II.  DISCUSSION          A.  The   1983 Claims          A.  The   1983 Claims              _________________                    We   first  address   appellants'  argument   that  the          preliminary injunction  should issue because  the district  court          abused its discretion and  legally erred.  We are not prepared to          say that appellants were entitled to a  preliminary injunction on          the basis of the record.   In particular, we note that the record          does  not  support  a  finding  of   irreparable  harm.    First,          appellants failed to submit job descriptions so that the district          court could determine  the magnitude  of the harm  they claim  to          have suffered from  their transfers to new jobs at  the same pay.          Second, appellants waited  to file their complaint  until July 6,          1993, more  than three months  after the  transfers took  effect,          thereby  undercutting the  claimed  irreparable  nature of  their          injury.   The district  court determined that  plaintiffs' injury          was  not irreparable,  in part,  because plaintiffs did  not show          that their new jobs were unreasonably inferior to the old jobs.                                         -4-                    Furthermore, the  district court noted how  the absence          of evidence on the job  descriptions in particular made difficult          the determination of the issues relating to the appellants' claim          for  a preliminary injunction.   It said:   "[t]he absence in the          record  of  detailed  job  descriptions hampers  our  ability  to          explore the details of the [appellants'] duties," 852 F. Supp. at          109; "the question remains  whether the contract analyst position          as newly  reconstituted is a career  position[;] [a]gain, neither          party has addressed  this issue," id. at  110 (emphasis omitted);                                            __          "the proper inquiry is whether the position in question places an          employee  intrinsically,  not  incidentally,  in  a  confidential          position[;]  . . .   [the  court  was  not   provided  with]  job          descriptions detailing [appellants'] duties  and responsibilities          to  allow [it] to  determine if they  involved partisan political          concerns so  that political  affiliation would be  an appropriate          job requirement," id. at 111.                            __                    Section 1983  actions  concerning transfers  of  public          employees  on  the  basis  of their  political  affiliations  are          especially   dependent   on   detailed   factual   determinations          concerning claimants' job  responsibilities.  See,  e.g., M ndez-                                                        ___   ____  _______          Palou  v. Rohena-Betancourt,  813  F.2d 1255,  1260-62 (1st  Cir.          _____     _________________          1987); Collazo Rivera  v. Torres Gaztambide, 812 F.2d 258, 261-62                 ______________     _________________          (1st Cir. 1987); Jim nez Fuentes  v. Torres Gaztambide, 807  F.2d                           _______________     _________________          236,  243-44 (1st Cir. 1986), cert. denied, 481 U.S. 1014 (1987).                                        ____________          Appellants assert  that  producing detailed  job descriptions  is          appellees' burden; appellees assert it is appellants' burden.  We                                         -5-          need  not  decide  this  issue  in  the  aftermath  of  Rutan  v.                                                                  _____          Republican  Party of  Illinois,  497 U.S.  62  (1990), given  our          ______________________________          disposition of this matter.                    Appellants'  other argument is  that the district court          should have  afforded them  an evidentiary hearing  before making          its determination.  We do not reach this issue because we believe          that the interests of  justice do not justify remanding  the case          for an evidentiary  hearing.  The papers supporting  and opposing          the preliminary  injunction had been  filed by October  22, 1993,          the district court  issued its order on May 16, 1994, and fifteen          months have passed  in the  interim.  Because  the judge  ordered          expedited discovery,  such discovery  should have taken  place by          now and the matter should be at or near trial on the merits.                    If a  trial  or other  final disposition  is indeed  in          prospect, diverting efforts to a new preliminary proceeding could          disserve the interests of both sides in an expeditious resolution          and  could  needlessly  waste   judicial  resources.    In  these          circumstances, we  think that  the district court  may reasonably          insist that  the parties  proceed  promptly to  trial instead  of          revisiting the preliminary injunction.          B.  The    1985 and 1986 Claims          B.  The    1985 and 1986 Claims              ___________________________                    The district court  determined that appellants'  claims          under  28 U.S.C.     1985 and 1986  were without merit,  and that          appellants were  therefore unable to show a likelihood of success          on  the merits as to those  claims.  See 852  F. Supp. at 114-15.                                               ___          Appellants do not contest this determination, and it is affirmed.                                         -6-                                   III.  CONCLUSION                                   III.  CONCLUSION                    The district court's Order and Opinion is affirmed.                                                              ________                                         -7-
