First Circuit Grants Qualified Immunity in Political Discrimination Case

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Lopez-Erquicia v. Weyne-Roig, 846 F.3d 480 (1st Cir., Jan. 25, 2017)

The First Amendment protects government employees against politically-motivated removal. “[F]reedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments.”  Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973), quoting NAACP v. Button, 371 U.S. 415, 430 (1963).  Courts, however, recognize an exception to this rule “for instances in which political affiliation is an ‘appropriate requirement for the effective performance of the public office involved.’”  Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004), quoting Branti v. Finkel, 445 U.S. 507, 518 (1980).  “This exception helps to ensure that elected representatives will not be hamstrung in endeavoring to carry out the voters’ mandate.”  Id., citing Elrod v. Burns, 427 U.S. 347, 367 (1976).

As the First Circuit recently acknowledged, the line between non-policymaking positions (which are protected) and policymaking positions (which are not protected) is not always clear.  In November 2012, Puerto Rico voters elected Alejandro Garcia Padilla, the Popular Democratic Party candidate, as their new governor.  In January 2013, Governor Padilla appointed Angela Weyne-Roig, to serve as Puerto Rico’s new Insurance Commissioner.  Shortly after she was instated, Weyne-Roig summoned the Director of the Commission’s Anti-Fraud Special Investigations (AFSI) Division, Ana Maria Lopez-Erquicia, to her office.  Lopez-Erquicia was a member of the opposition New Progressive Party.  Weyne-Roig informed Lopez-Erquicia that “things would be changing.”  And change they did.  Within months, Weyne-Roig eliminated the AFSI Division and reassigned Lopez-Erquicia to the Legal Affairs Division.  Claiming the change was based on her political affiliation, Lopez-Erquicia filed suit.  The district court denied defendant’s motion for summary judgment based on qualified immunity.  On appeal, the First Circuit reversed.

To decide whether a particular position falls within the ambit of First Amendment protection, a court must examine the extent to which the job “involve[s] government decisionmaking on issues where there is room for political disagreement on goals or their interpretation.”  846 F.3d at 485, quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc).  Such analysis starts with the “particular responsibilities” of the position at issue to determine whether it resembles 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.”  Next, a court should consider “secondary factors” such as “relative pay, title, and legal or legislative classification . . ..”  Here, the responsibilities of the AFSI Director suggested that the position was one of a policymaker or advisor.  Those responsibilities included coordinating the work of the Division with federal, state and local authorities, developing and interpreting applicable rules and regulations, and advising (and sometimes substituting for) the Deputy Commissioner.  Puerto Rico law, however, classified AFSI Director as a “career” position, from which employees may only be terminated for cause, and not as a “trust” position, for which employees may be selected and removed at will.

On balance, the First Circuit stressed that ‘“[a]ctual functions of the job  . . . control’ our analysis.”  846 F.3d at 487, quoting Olmeda v. Ortiz-Quinonez, 434 F.3d 62, 66 (1st Cir. 2006).  Here, the “actual functions” of the AFSI Director suggested that Lopez-Erquicia’s role was that of an official involved in Insurance Commission policymaking, at least as an advisor.  Therefore, because it was not clearly-established that Lopez-Erquicia was protected from politically-motivated removal under the First Amendment (indeed, she most likely was not), the Court held the defendant was entitled to qualified immunity.  Based on the factual nature of the First Circuit’s analysis, it appears future defendants may enjoy qualified immunity in all but the most egregious cases of political retribution.