812 F.

2d 258

Jorge Hiram COLLAZO RIVERA, et al., Plaintiffs, Appellees,

v.
Hon. Jaime TORRES GAZTAMBIDE, et al., Defendants,
Appellants.
No. 86-1308.

United States Court of Appeals,

First Circuit.
Argued Nov. 6, 1986.
Decided Feb. 25, 1987.

Marcos A. Ramirez, with whom Marcos A. Ramirez Lavandero, Hector

Rivera Cruz, Secretary of Justice, and Ramirez & Ramirez, Hato Rey,
P.R., were on brief, for appellants.
Frank Rodriguez-Garcia, Ponce, P.R., for appellees.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
BOWNES, Circuit Judge.

Plaintiff-appellee Jorge Hiram Collazo Rivera filed a civil rights suit in district
court alleging that defendants-appellants Cosme Hernandez Silva and Jaime
Torres Gaztambide violated the first and fourteenth amendments when they
dismissed plaintiff from his government position. The district court granted
plaintiff's request for a preliminary injunction, ordering that Collazo Rivera be
reinstated. We reverse the grant of the preliminary injunction.

I. BACKGROUND
2

In June 1981 Collazo Rivera was appointed Utuado District Regional Director
of the Rural Housing Administration (RHA), an agency of the Puerto Rico
Department of Housing. In January 1985 the Partido Popular Democratico
(PPD), having won the gubernatorial election, supplanted the Partido Nuevo
Progresista (PNP), of which plaintiff was a member, as the party in control of
the Commonwealth Administration. 1 On February 19, 1985, Hernandez Silva,

Director of the RHA, transferred Jaime Barcelo, a PPD member, to take over
plaintiff's functions as Regional Director, and on March 19, 1985, Hernandez
Silva and Torres Gaztambide, the Secretary of the Department of Housing and a
PPD member, notified plaintiff in writing that he had been replaced and his
services would no longer be required.
3

Plaintiff brought suit in district court alleging that the firing violated his
constitutional rights, and asking for damages and an injunction ordering his
reinstatement as Regional Director with back pay. The district court held that
the requirements for a preliminary injunction had been met; it ordered
reinstatement and enjoined defendants from altering plaintiff's employment
status on the basis of political affiliation pending a hearing and a determination
on the request for a permanent injunction.

II. STANDARD OF REVIEW

4

We need not decide at this stage of the proceedings whether, as defendants

urge, we must make an independent examination of the whole record under
Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104
S.Ct. 1949, 80 L.Ed.2d 502 (1984). This is not an appeal from a judgment on
the merits. We are deciding only whether it was proper to issue a preliminary
injunction. The appropriate standard for such review is abuse of discretion.
Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 239 (1st Cir.1986) (en
banc); see also De Choudens v. Government Development Bank of Puerto
Rico, 801 F.2d 5, 7 (1st Cir.1986) (en banc); National Tank Truck Carriers, Inc.
v. Burke, 608 F.2d 819, 823 (1st Cir.1979). We have described this standard as
follows:

5 decision to grant or deny a preliminary injunction is a matter for the discretion

The
of the district court and is reversible, of course, only for an abuse of discretion. It is
also well-settled, however, that the application of an improper legal standard in
determining the likelihood of success on the merits is never within the district
court's discretion. Similarly, misapplication of the law to particular facts is an abuse
of discretion. In either of these circumstances, the denial of the preliminary
injunction should be reversed and the injunction entered if necessary to protect the
rights of the parties.
6

Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st
Cir.1981) (citations omitted) (quoting Charles v. Carey, 627 F.2d 772, 776 (7th
Cir.1980), appeal dismissed sub nom. Diamond v. Charles, --- U.S. ----, 106
S.Ct. 1697, 90 L.Ed.2d 48 (1986)). We note also that because we are reviewing
a preliminary injunction, "our 'conclusions' and 'holdings' as to the merits of the

issue presented are to be understood as statements as to probable outcomes."

Jimenez Fuentes, 807 F.2d at 239.
III. THE PRELIMINARY INJUNCTION
7

In this circuit there are four criteria that must be satisfied for a plaintiff to be
entitled to a preliminary injunction:

8 Court must find: (1) that plaintiff will suffer irreparable injury if the injunction
The
is not granted; (2) that such injury outweighs any harm which granting injunctive
relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of
success on the merits; and (4) that the public interest will not be adversely affected
by the grant of the injunction.
9

Planned Parenthood League of Mass. v. Bellotti, 641 F.2d at 1009 (quoting

Women's Community Health Center, Inc. v. Cohen, 477 F.Supp. 542, 544
(D.Me.1979)). The district court held that all four criteria were met and granted
plaintiff's request for a preliminary injunction. We hold that plaintiff has not
established the third criterion--a likelihood of success on the merits--because
we find that party affiliation is an appropriate requirement for the Regional
Director position and, therefore, it was permissible for the Administration to
dismiss Collazo Rivera. If the court abused its discretion in making its decision
on any criterion, we must reverse. See Jimenez Fuentes, 807 F.2d at 239. Thus,
we have no cause to address the other criteria.

10

In our en banc opinion in Jimenez Fuentes v. Torres Gaztambide,2 this court

analyzed Supreme Court precedent, particularly Elrod v. Burns, 427 U.S. 347,
96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100
S.Ct. 1287, 63 L.Ed.2d 574 (1980), and surveyed lower court interpretations of
the law governing politically motivated discharges, to formulate a two-step
inquiry for determining when a position is exempt from the prohibitions on
firing someone for partisan political reasons. Jimenez Fuentes, 807 F.2d at 239242. We noted that party loyalty is a permissible basis for selecting officials to
fill certain positions on which the Administration relies for facilitating its
programs and policies. Id. at 242. The first step in determining whether a
particular position plays such a role is to ask if it "relates to 'partisan political
interests.... [or] concerns.' That is, does the position involve government
decisionmaking on issues where there is room for political disagreement on
goals or their implementation? Otherwise stated, do party goals or programs
affect the direction, pace, or quality of governance?" Id. at 242 (citation
omitted) (quoting Branti v. Finkel, 445 U.S. at 519, 100 S.Ct. at 1295). The
second step is to "examine the particular responsibilities of the position 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." Jimenez
Fuentes, 807 F.2d at 242. Our function is "to weigh all relevant factors and
make a common sense judgment in light of the fundamental purpose to be
served." Id.
11

The district court held that "[o]ther than defendants' reliance on the fact that
plaintiff's position is one of trust and confidence and the citing of some cases
which the Court finds inapposite, there is no evidence the post entailed a
degree of policy-making sufficient for political affiliation to qualify as an
appropriate requirement." It found that there were "no responsibilities that may
be even remotely considered of a policy-making nature." Our analysis of the
Regional Director's functions in the light of the teaching of Jimenez Fuentes
leads us to the opposite conclusion.

A. Relationship to Partisan Political Concerns

12
13

Our first inquiry is whether the Regional Director position relates to partisan
political concerns. In Jimenez Fuentes, we held that the Regional Director of
the Puerto Rico Urban Development and Housing Corporation was such a
position. 807 F.2d at 243-244. The Urban Development and Housing
Corporation is a subgroup of the Department of Housing, responsible for
providing housing in urban areas. The RHA is also a subgroup of the
Department of Housing, responsible for administering housing programs in
rural areas. The Regional Director implements RHA programs of significant
economic and geopolitical impact. For instance, the RHA has the responsibility
of distributing land to certain agricultural laborers (the agregados ). See P.R.
Laws Ann. tit. 28, Secs. 521, 555 (1985). It administers programs to encourage
family farm ownership and to distribute lots and construction materials to lowincome families. Id. Secs. 521, 711.

14

The RHA, therefore, administers important agrarian reform programs that

impact on the fabric of Puerto Rico's rural life. The governing political party's
ideological orientation on social and economic issues could affect the approach
taken in carrying out these programs. The position, therefore, is essentially
similar to one involving "the provision of housing to low and middle income
city residents[, which] is a vital political issue, at least as important to partisan
program goals as the provision of water discussed in Tomczak [v. City of
Chicago, 765 F.2d 633 (7th Cir.1985) ]." Jimenez Fuentes, 807 F.2d at 243. In
other words, it is a position in an agency rendering economic and social
services of broad impact involving "government decisionmaking on issues

where there is room for political disagreement on goals or their

implementation[.]" Id. at 242. An official with regional authority to implement
rural social and economic reforms could, because of political disagreement with
the Administration over fundamental issues, hinder the accomplishment of the
elected Administration's goals. We hold, therefore, that the RHA Regional
Director position is substantially related to partisan political concerns.
B. The Responsibilities of the Regional Director
15
16

Our second inquiry is into the particular responsibilities of the Regional

Director to determine whether they entail policymaking, access to confidential
information, communications, or similar functions for which party loyalty is an
appropriate requirement. Our focus in this analysis is on the Regional Director's
inherent powers, not the duties actually performed. The purpose of "this
approach seems to be two-fold: first, to resolve the issue entirely in one
proceeding, thereby relieving the courts of the burden of having to reexamine a
certain position every time a new administration changes the mix of
responsibilities bestowed upon the officeholder; and, second, to provide
certainty to litigants." De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1192 (1st
Cir.1986) (quoting Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th
Cir.1985)).

17

The job classification provided to the court lists the following duties of the
RHA Regional Director:

18

1. Administering RHA activities at district level;

19

2. Attending meetings at the RHA central office to implement the land

distribution program;

20

3. Orienting the officers and the community on the pertinent statutes and
regulations;

21

4. Supervising and evaluating field work;

22

5. Filling out, investigating, and referring applications for parcels not awarded,
left vacant, or obtained because of certain changes in ownership and
configuration;

23

6. Organizing personnel training;

24

7. Coordinating RHA activities with municipal administrations;

25

8. Directing the investigation and verification of candidate lists for parcel

distribution;

26

9. Handling complaints and making referrals to mayors, legislators, and

community commissions;

27

10. Coordinating deed signing for the property granted in the district;

28

11. Coordinating and supervising surveying activity;

29

12. Evaluating work performance and submitting recommendations on

personnel matters to the central office;

30

13. Serving as liaison between the RHA central office and other district-level
agencies;

31

14. Drafting reports;

32

15. Offering recommendations for the improvement of RHA services to the

executive director;

33

16. Representing the RHA in disputes concerning pertinent statutes,

regulations, and rules;
17. Carrying out other assigned duties; and

34

18. Participating in a direct or delegated manner in the enactment of program

rules and regulations, including "the enactment, modification and interpretation
of [program] functions or in the direct counseling of the [RHA] head
influencing the public policy."3

35

These duties include implementing RHA programs, coordinating RHA

activities with senior officials and other agencies and officials, and evaluating
RHA policy and making recommendations for changes to it. They are very
similar to the Regional Director's duties for which we found party loyalty to be
an appropriate requirement in Jimenez Fuentes. See Jimenez Fuentes, 807 F.2d
244-245. Plaintiff argues, however, that the RHA Regional Director in fact has

no discretion in performing the assigned functions. He directs our attention to

the Norms and Procedures Handbook for the RHA, which contains detailed
guidelines for the implementation of the parcel distribution program. The use of
a detailed guidebook does not necessarily mean, however, that the position
does not involve duties for which political affiliation is an appropriate
requirement. Even if the procedures for carrying out the program are strictly
circumscribed, there is still opportunity for affecting rural social and economic
policies. As we said in Jimenez Fuentes, unless a regional director supports the
agency's policies, the agency head " 'might face a situation where the hostile
efforts or foot-dragging actions of any one of the [regional directors] could
singlehandedly thwart the Administration's goals in that particular [region].' "
803 F.2d at 10 (quoting Brunton v. United States, 518 F.Supp. 223, 239
(S.D.Ohio 1981). "[P]olicy implementation is just as important as
policymaking." Branti v. Finkel, 445 U.S. at 530, 100 S.Ct. at 1301 (Powell, J.,
dissenting), quoted in Jimenez Fuentes, 807 F.2d at 246. The Regional
Director's duties offer considerable opportunity either to effectuate or to hinder
the implementation of RHA programs and policies.
36

In Jimenez Fuentes, we found support for our conclusion that the Urban
Development and Housing Corporation Regional Director was a position for
which party loyalty was an appropriate requirement in the legislative
classification of the position as one of "trust and confidence." 807 F.2d at 246247. The RHA Regional Director is similarly classified. See L.P.R.A. tit. 3,
Sec. 1350 (1978). According to the statute, "[c]onfidential employees are those
who intervene or collaborate substantially in the formulation of the public
policy, who advise directly or render direct services to the head of the agency,
such as ... [r]egional directors of agencies." Id. The district court did not find
this classification significant in the context of its determination that there was
no other evidence that the Regional Director had responsibilities of a
policymaking nature. Although this legislative classification is not
determinative in our examination of the Regional Director's responsibilities, the
decision to include the individual in this position as one of the few "confidential
employees" indicates that the position was viewed as entailing sensitive
responsibilities. As we said in Jimenez Fuentes, "[w]ithin the agency at least,
[plaintiff was] considered to be at the policymaking end of the spectrum." 807
F.2d at 247. We hold, therefore, that "party affiliation is an appropriate
requirement for the effective performance" of the Regional Director position.
See Branti v. Finkel, 445 U.S. at 518, 100 S.Ct. at 1294.

37

In light of the similarity between the RHA Regional Director's duties and those
of the Urban Development and Housing Corporation Regional Director, the
same conclusion is warranted in this case as in Jimenez Fuentes.

38

The grant of the preliminary injunction is reversed. Remanded.

39

Costs awarded to appellants.

40

TORRUELLA, Circuit Judge (Dissenting).

41

The majority opinion is another example of the growing tendency of this

circuit, in Puerto Rico political discharge cases, to assume facts or possibilities
that are not supported by the record. Cf. Rule 52(a), Fed.R.Civ.P.; Anderson v.
City of Bessemer, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
Although the majority cites the en banc opinion in Jimenez Fuentes v.
Gaztambide, supra, as authority for its ruling, a closer analysis of the present
situation indicates that the applicable circuit precedent is De Choudens v.
Government Development Bank, 801 F.2d 5 (1st Cir.1986) (en banc) (senior
vice-president of the Puerto Rico Government Development Bank is not a
position for which party affiliation is an appropriate requirement).

42

The first step in Jimenez Fuentes' two-pronged test for determining whether
party affiliation is an appropriate requirement for the position in question4 is,
does the particular position "relate [ ] to partisan political interests ... [or]
concerns. That is, does the position involve decision making on issues where
there is room for political disagreement on goals or their implementation?
Otherwise stated, do party goals or programs affect the direction, pace or
quality of governance?" Jimenez Fuentes, 807 F.2d at 242.

43

As a basis for concluding that the RHA Regional director position is

substantially related to partisan political concerns, the majority indicates, ante
at 260, that:

44

The RHA ... administers important agrarian reform programs that impact on the
fabric of Puerto Rico's rural life. The governing political party's ideological
orientation on social and economic issues could affect the approach taken in
carrying out these programs.... An official with regional authority to implement
rural social and economic reforms could, because of political disagreement with
the Administration over fundamental issues, hinder the accomplishment of the
elected Administration's goals.

45

(Emphasis supplied). The above possibilities certainly do not come from the
record. I have searched the record in vain for any factual support for these
hypothetical conclusions. If a determination of the appropriateness of political
affiliation is going to depend on a whole gamut of possibilities and speculations

rather than on facts in the record, government employees are in a defenseless

and indefensible position.
46

If the evidence were in the record, a comparison of the NPP's and PDP's official
party platforms would demonstrate that after the expected rhetoric is set aside,
there is surprisingly little difference in both party's "ideological orientation on
social and economic issues," particularly as regards "important agrarian reform
programs." There are substantial factions within both the NPP and the PDP
who are affiliated to the National Democratic Party. The principal difference
between the NPP and the PDP lies in their respective solutions to the question
of how Puerto Rico's status should be resolved as relates to the United States.
The NPP believes in statehood as the ultimate goal for Puerto Rico, while the
PDP promotes an associated commonwealth.5 Nevertheless, even assuming
general ideological differences between these parties, there is no evidence in
this record that there are any such differences regarding the administration of
the programs handled by the RHA or plaintiff. The closest thing to this type of
evidence in the record is the marginally-related testimony of appellant's
"expert," Dr. Jack Hirshbrunner, evidence which was specifically rejected by
the district court as not credible. See District Court opinion at 910. See also
Anderson v. Bessemer City, 470 U.S. at 573-576, 105 S.Ct. at 1511-1513.

47

The majority's reference, ante at 261, to the RHA's statutory duties in the
distribution of land,6 as a basis for concluding that "the position involve[s]
decision making on issues where there is room for political disagreement on
goals or their implementation," is inapposite. The record establishes that these
distributions are carried out by chance, that is, by raffle (tombola ), precisely to
eliminate the possibility of discrimination, political or otherwise. See also 28
L.P.R.A. Sec. 716. There is thus no political discretion to be exercised by the
Regional Director in the execution of the principal raison d'etre of the RHA.
Even without such a procedure, however, it would be most infelicitous if this
court were to promote a patronage system that would encourage or facilitate the
administration of social programs depending on the political affiliation of its
recipients. Yet that is the predictable outcome of permitting the position of
Regional Director to be filled by resorting to political hacks.

48

The majority's conclusion to the effect that "because of political disagreement

with the Administration over fundamental issues," the regional director might
be in a position to "hinder the accomplishment of the elected Administration's
goal," wherefore, the position "is substantially related to partisan political
concerns," ante at 261, reveals equally flawed reasoning. Such a situation
basically describes a possible Mt. Healthy7 scenario. If those facts were to
develop, i.e., disloyalty or disruptive behavior by the employee against the

Administration, irrespective of the employee's motivations appropriate

disciplinary action, including dismissal, would be justified. A Mt. Healthy issue
was in fact litigated and the district court ruled that the evidence was
insufficient to support such a conclusion. See District Court opinion at pp. 7-8,
9-10. Merely because there is a possibility of disloyal actions by a subordinate,
the position in question cannot be automatically converted into one for which
political membership is appropriate. If such were the test, political affiliation
would be an appropriate requirement for the entire governmental hierarchy, as
the possibility of disloyalty is always there. Yet that is not the law. See Branti
v. Finkel, supra. As the district court indicated, "[t]he single answer to a nonproactive attitude is dismissal, but not for the employee's political beliefs." Id.
at 10 (citations omitted).
49

In sum, the record does not support a finding to the effect that the RHA
Regional Director position is substantially related to partisan political concerns,
as is required by the first prong in Jimenez Fuentes.

50

Similarly, the record fails to support the majority's conclusion to the effect that
the second Jimenez Fuentes test has been met. This test requires "examin[ing]
the particular responsibilities of the position 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." Jimenez Fuentes, 807 F.2d at 242.

51

The record shows, and the district court so found, "that there is no evidence the
post entailed a degree of policy-making sufficient for political affiliation to
qualify as an appropriate requirement." District Court opinion at 9. It found "no
responsibilities that may be even remotely considered of a policy making
nature." Id. On the record before us, the majority cannot conclude that the
district court abused its discretion in issuing the injunction in this case, Jimenez
Fuentes, 807 F.2d at 238. Neither is it free to ignore the district court's findings.
Cf. Anderson v. Bessemer City, 470 U.S. at 573, 105 S.Ct. at 1511 ("a finding
of intentional discrimination is a finding of fact").

52

None of the duties listed in the majority opinion, ante at 261, either individually
or collectively can lead one to conclude that party loyalty should play any role
in carrying out these duties. A reading of these duties reveals, at best, minimal
policy input. Furthermore, there is nothing that can imply that the position is
privy to confidential information.8 There is no evidence in the record as to this.

53

The fallacy in the majority's conclusion regarding appellee's position is readily

seen when we compare his duties with those of the incumbent in the De
Choudens' case. There we ruled en banc that the position of Senior VicePresident for the Finance Area of the Government Development Bank of
Puerto Rico was not a position for which party affiliation was an appropriate
requirement, despite holding that agency to be a politically sensitive one. Our
ruling that de Choudens' position was non-political was made notwithstanding
that she was "a staff official who, ... [held] a policymaking, confidential, and
communicative position", "head[ed] one of the Bank's three main operations
areas, the Finance Area", "was a member of the Bank's Loan Committee and
sometimes acted as interim President", "gave advice to the President and the
Board of Directors on financial matters within her area", and "was indeed an
agency spokes-person." De Choudens, 801 F.2d at 9. If we ruled that de
Choudens did not hold a political position in the face of those findings, I fail to
see how we can rule otherwise in this case.
54

Because the majority usurps the fact-finding functions of the district court, and
because this opinion will cause further confusion in an already disrupted
jurisprudential area, I dissent.

One of the fundamental differences between the two parties is that the PNP
seeks statehood and the PPD prefers autonomy under a commonwealth status

The district court did not have the benefit of our en banc opinion at the time it
decided this case

Plaintiff contests the accuracy of the description in item eighteen, contending

that he had not been aware of such duties and has never performed them.
Plaintiff withdrew an objection to the authenticity of the document, but claims
that item eighteen is only "ritual language" included to receive a certain job
classification for the position. Because we are focusing on the inherent powers
of the position, item eighteen is relevant even if it is not an accurate description
of what plaintiff actually did. Moreover, even if this item were not truly the
Regional Director's function, the rest of the duties listed are important enough
to support the conclusion that the Administration may require party loyalty of
the person responsible for their implementation

See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980)

The exact meaning of this concept is yet to be fully defined. At least at present,
commonwealth includes as its basis, permanent union with the United States
under the principles of "common citizenship, common defense, common

currency, free market, [and] common loyalty to the values of democracy." 1

L.P.R.A. p. 151
6

28 L.P.R.A. Sec. 521, 555, 711 (1985)

Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d
471 (1977)

The classification by the Puerto Rico Legislature of this position as being

"confidential" 3 L.P.R.A. Sec. 1350, implies only that its incumbent is a high
ranking employee, not necessarily one who receives confidential information