Ortiz-Resto v. Rivera-Schatz
CourtCourt of Appeals for the First Circuit
Date FiledNovember 3, 2026
Docket21-1232
StatusPublished
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Full Opinion
United States Court of Appeals
For the First Circuit
No. 21-1232
JULIO ORTIZ-RESTO; CARLOS GUERRA-CRUZ; JOSE FUENTES-RODRIGUEZ;
CARMEN PABON-COTTEA; REY ANDINO-PLAZA;
RAMON RIVERA-LOPEZ; WILFREDO DIAZ-JIMENEZ; BENYAMIL
MORALES-COLON; KELVY SANTIAGO-RODRIGUEZ; ELIZABETH
COLON-RODRIGUEZ; ADOLF MORALES-RUIZ; XIOMARA RIVERA-CABRERA;
CARLOS CIRINO-ROBLES; HECTOR FIGUEROA-VAZQUEZ;
LYNNETTE LOPEZ-OJEDA; PIERRE VEGA-ALAMEDA;
EMANUEL CORREA-COLON; HECTOR SANTIAGO-HERNANDEZ;
FRANCISCO REYES-NEGRON; HORIDEL PONS-ANAYA; GISELLE
OCASIO-MORALES; GAMALIER CARDONA-SANCHEZ; JENNIFER
HERNANDEZ-ADORNO; JEAN CARLOS COLON-RIVERA; LUIS
OJEDA-RODRIGUEZ; JONATHAN TORRES-OVALLES; NANCY
LOPEZ-MORALES; ILEANA PEREZ-MENDEZ; DAVID SILVA-IRIZARRY;
LOURDES RUIZ-ANDRINO; JESSICA RIVERA FERRER;
NOEL BERRIOS-RODRIGUEZ; JOSE RIVERA-PARILLA; JOSE
MELENDEZ-LEBRON; LARRY RONDON-VAZQUEZ; CARLOS
KUIDLAND-DIAZ; ANA RODRIGUEZ-SANTANA; RAMPHIS BAEZ-CALDERON;
CHRISTOPHER DECENE-GARCIA; FELIX RIVERA-ROLON;
DENISE RIVERA-COLON; ELI DIAZ-JIMENEZ; JULIA
RODRIGUEZ-LOPEZ; LUIS ANTONIO CHICO RIOS; MIGUEL
ALFONSO CHICO RIOS; MANUEL CHICO RIOS; ROBERTO
CHICO RIOS,
Plaintiffs, Appellees,
v.
THOMAS RIVERA-SCHATZ, President of the Senate of the
Commonwealth of Puerto Rico; ROBERTO MALDONADO-VÉLEZ,
Administrative Secretary of the Senate of the Commonwealth of
Puerto Rico; GABRIEL HERNÁNDEZ-RODRÍGUEZ, Chief of Staff of the
President of the Senate of the Commonwealth of Puerto Rico,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. William G. Young,* U.S. District Judge]
Before
Barron, Chief Judge
Breyer,** Associate Justice
and Thompson, Circuit Judge
Eduardo A. Vera Ramírez argued, with whom Luis A. Rodríguez
Muñoz and Landrón Vera, LLC were on brief for appellee.
Omar Andino-Figueroa, Solicitor General of Puerto Rico, with
whom Frank A. Rosado Méndez, Deputy Solicitor General, and Mariola
Abreu-Acevedo, Assistant Solicitor General were on brief, for
appellant.
November 3, 2026
* Of the District of Massachusetts, sitting by designation.
** Hon. Stephen G. Breyer, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
BARRON, Chief Judge. This interlocutory appeal comes to
us in connection with a suit by three former employees of the
Senate of the Commonwealth of Puerto Rico. The defendants are
officials in the Senate of the Commonwealth of Puerto Rico. They
moved for summary judgment based on qualified immunity as to
certain claims that three of those former employees brought. In
those claims, the three former employees seek damages from the
defendants in their personal capacities under 42 U.S.C. § 1983.
They do so on the ground that the defendants violated their rights
under the First Amendment to the U.S. Constitution by firing them
from their Senate positions based on their partisan political
affiliation. The District Court denied the motion. The defendants
now appeal from that ruling insofar as it rejected their claim of
qualified immunity. We affirm.
I.
The three former employees who bring the claims before
us in this interlocutory appeal were among dozens of former Senate
employees who filed the underlying suit in the U.S. District Court
for the District of Puerto Rico in December 2017. The named
defendants are Thomas Rivera-Schatz, the President of the Senate;
Roberto Maldonado-Vélez, the Administrative Secretary of the
Senate; and Gabriel Hernández-Rodríguez, the Chief of Staff of the
President of the Senate.
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The full set of plaintiffs brought several different
equitable and monetary damages claims in the initial suit,
including due process and equal protection claims, as well as
claims under Puerto Rico law. Many of those claims were dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief may be granted. One of the
claims was dismissed at the summary judgment stage. Other
surviving claims are not at issue in this appeal.
The only claims at issue in this appeal were brought by
the following three former Senate employees: Elizabeth
Colón-Rodriguez ("Colón"), Pierre Vega-Alameda ("Vega"), and
Horidel Pons-Anaya ("Pons"). The operative complaint alleges that
Colón held the position of Protocol Officer in the Office of
Protocol and Activities for the Senate and that Vega and Pons held
the position of Liaison Technician in the Office of Governmental
Affairs for the Senate. This appeal concerns only their First
Amendment-based, personal-capacity damages claims against the
defendants.
The defendants moved for summary judgment as to those
specific claims. They did so in part by asserting that they were
entitled to qualified immunity. The District Court denied the
motion, and the defendants timely sought interlocutory review of
that ruling insofar as it denied them summary judgment based on
qualified immunity.
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II.
The three former employees contend that we lack
appellate jurisdiction to review the District Court's denial of
the defendants' motion for summary judgment, even insofar as the
defendants are challenging only the District Court's qualified
immunity ruling. The three former employees rely on Johnson v.
Jones, 515 U.S. 304 (1995), in so arguing.
Johnson establishes that "a defendant, entitled to
invoke a qualified immunity defense, may not appeal a district
court's summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a 'genuine' issue of
fact for trial." Id. at 319-20. In such circumstances, Johnson
explains, the appellate court lacks appellate jurisdiction to hear
an interlocutory appeal because "the issue . . . at stake -- the
existence, or nonexistence, of a triable issue of fact -- is the
kind of issue that trial judges, not appellate judges, confront
almost daily. Institutionally speaking, appellate judges enjoy no
comparative expertise in such matters." Id. at 316.
Johnson contrasted such circumstances, however, with
those in which "purely legal matters are at issue," as Johnson
allowed the defendant invoking the qualified immunity defense to
bring an appeal of the denial of summary judgment based on
qualified immunity on an interlocutory basis. Id. The Court
explained in Johnson that "'[i]mmunity appeals . . . interfere
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less with the final judgment rule if they [are] limited to cases
presenting neat abstract issues of law.'" Id. at 317 (alteration
in original)(quoting 15A C. Wright, A. Miller, and E. Cooper,
Federal Practice and Procedure § 3914.10 at 664 (1992)).
In the interlocutory appeal at hand, the three former
employees argue that we lack appellate jurisdiction under Johnson
because of what they assert is the fact-dependent nature of the
defendants' grounds for challenging the District Court's denial of
their motion for summary judgment based on qualified immunity.
The defendants disagree with that characterization of their
grounds for appeal.
Wholly apart from this threshold dispute over our
appellate jurisdiction under Johnson, however, the defendants
contend that there is no reason for us to reach the merits of their
challenge to the District Court's ruling as to qualified immunity.
They contend that, even if we were to conclude that we have
appellate jurisdiction under Johnson and so would not for that
reason be barred from addressing the challenge on the merits, we
still would have to remand the plaintiffs' claims at issue on
appeal to the District Court with orders to "dismiss or permanently
stay the action."
The reason, according to the defendants, is that, while
their interlocutory appeal was pending, the claims that are at
issue in it were discharged in the bankruptcy proceedings involving
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the Commonwealth of Puerto Rico that are being conducted pursuant
to the Puerto Rico Oversight, Management, and Economic Stability
Act ("PROMESA"). 48 U.S.C. § 2101 et seq. As a result, the
defendants contend that, whether or not they are entitled to
qualified immunity as to the claims that are at issue in their
interlocutory appeal, it is no longer possible for the plaintiffs
to obtain the relief that the plaintiffs seek on those claims.
Accordingly, the defendants contend, we cannot address the merits
of the defendants' challenge on appeal to the denial of their
motion for summary judgment based on qualified immunity, as the
claims for which the defendants have sought dismissal on summary
judgment must be either dismissed or permanently stayed because
they have been discharged.
The defendants' contention rests on an order that was
issued in 2022 by the federal district court that PROMESA vested
with jurisdiction over the bankruptcy proceedings involving the
Commonwealth. In re Fin. Oversight & Mgmt. Bd. of P.R., 636 B.R.
1 (D.P.R. 2022). That order not only confirmed the Plan of
Adjustment for the Commonwealth that had been adopted by the
PROMESA-created Financial Oversight and Management Board but also
discharged and enjoined the pursuit of certain claims against the
Commonwealth. Id. at 38. The defendants contend that the claims
before us in this interlocutory appeal were among the claims
subject to that order.
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We may easily dispose of the defendants' PROMESA-related
contention. And that is so even assuming that it is properly
before us in this interlocutory appeal. See Posada v. Cultural
Care, Inc., 66 F.4th 348, 356 n.6 (1st Cir. 2023) (quoting Cowels
v. Fed. Bureau of Investigation, 936 F.3d 62, 67 (1st Cir. 2019))
("Where a question of statutory jurisdiction is complex, but the
merits of the appeal are easily resolved against the party invoking
[] jurisdiction, we can assume jurisdiction for purposes of
deciding the appeal." (internal quotation marks
omitted)(alteration in original)); cf. Asociación De Subscripción
Conjunta Del Seguro De Responsabilidad Obligatorio v. Flores
Galarza, 484 F.3d 1, 20 n.22 (1st Cir. 2007) ("[A]ppellate
jurisdiction extends to issues of standing on interlocutory appeal
of a denial of immunity."); Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 68 n.22 (1997) ("Mootness has been described as the
doctrine of standing set in a time frame[.]" (internal quotation
marks omitted)).
We recently held in In re Fin. Oversight & Mgmt. Bd. of
P.R., 178 F.4th 747, 751 (1st Cir. 2026), that the order on which
the defendants' contention rests "does not apply to
personal-capacity claims and that such claims are therefore not
subject to any injunction impeding their prosecution." Indeed, we
explained that "discharging personal-capacity claims would
constitute a non-consensual third-party release, thereby running
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afoul of the Plan's plain language and diverging from the Supreme
Court's reasoning in [Harrington v. Purdue Pharma L.P., 603 U.S.
204 (2024)]"1 In re Fin. Oversight & Mgmt. Bd. of P.R., 178 F.4th
at 759.
Thus, the claims at issue in this interlocutory appeal
clearly were not discharged. As a result, we must circle back to
the parties' dispute about our appellate jurisdiction under
Johnson to address the merits of the defendants' challenges to the
District Court's denial of their motion for summary judgment based
on qualified immunity. We will address the merits of those
challenges only insofar as we have appellate jurisdiction to do
so.
III.
We first will describe both the relevant qualified
immunity standard and the District Court's ruling denying the
defendants' motion for summary judgment based on qualified
immunity. We then will address each of the defendants' challenges
to that ruling. In each instance, we will first analyze the
plaintiffs' threshold contention regarding our appellate
1This decision emphasized that "in the analogous context of
corporate bankruptcy, releasing claims against third parties
involves exercising a 'radically different power' than releasing
claims against the debtor -- a power with which bankruptcy courts
are 'not endow[ed].'" In re Fin. Oversight & Mgmt. Bd. of P.R.,
178 F.4th at 756 (alterations in original).
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jurisdiction under Johnson to address the merits of the challenge
before then resolving the merits of the challenge insofar as we
have jurisdiction to do so.
A.
"In deference to the sensitive discretionary judgments
that government officials are obliged to make, qualified immunity
safeguards even unconstitutional conduct if a reasonable officer
at the time and under the circumstances surrounding the action
could have viewed it as lawful." Jordan v. Carter, 428 F.3d 67,
71 (1st Cir. 2005). "[W]e follow a two-prong analysis for
determining whether defendants are entitled to qualified immunity,
asking '(1) whether the facts alleged or shown by the plaintiff
make out a violation of a constitutional right; and (2) if so,
whether the right was 'clearly established' at the time of the
defendant's alleged violation.'" Díaz-Bigio v. Santini, 652 F.3d
45, 50 (1st Cir. 2011)(citation omitted).
The second prong, we have said, "has two parts:
(a) whether the legal contours of the right in question were
sufficiently clear that a reasonable official would have
understood that what he was doing violated that right, and
(b) whether the particular factual violation in question would
have been clear to a reasonable official." Díaz-Bigio, 652 F.3d
at 50. In the political discrimination context, we have
articulated that inquiry as follows: whether 1) "defendants were
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entitled to consider [the plaintiffs'] political affiliation as a
job qualification" and 2) "even if they were not, whether a
reasonable officer at the time would have understood patronage
dismissal to be barred." López-Quiñones v. P.R. Nat'l Guard, 526
F.3d 23, 25 (1st Cir. 2008).
The three former employees allege in the claims at issue
in this interlocutory appeal that, under the First Amendment, the
defendants were not entitled to consider the three former
employees' political affiliation as a job qualification. The three
former employees acknowledge, though, that the First Amendment
barred their political affiliation from serving as a job
qualification only if the positions that they held in the Senate
of the Commonwealth did not "involve government decisionmaking on
issues where there is room for political disagreement on goals or
their implementation[.]" Jimenez Fuentes v. Torres Gaztambide,
807 F.2d 236, 241–42 (1st Cir. 1986) (en banc). If their positions
did involve such government decisionmaking, and if their positions
"resemble[] 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,"
then the three former employees were not protected under the First
Amendment from dismissal based on their partisan political
affiliation. See id. at 242.
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In denying the defendants' motion for summary judgment
based on qualified immunity, the District Court addressed whether
a reasonable officer at the time would have understood the three
former employees' dismissal based on their partisan political
affiliation to be barred.2 To that end, the District Court held
that the defendants were not entitled to a summary judgment grant
of qualified immunity on reasonableness grounds for two
independent reasons.
First, the District Court denied the motion on the ground
that "[w]here there are questions of fact as to whether the
positions were protected from patronage dismissal, the Court also
rules that genuine issues of material fact preclude a determination
of objective reasonableness for qualified immunity to attach on
this record." The District Court determined that those "genuine
issues of material fact" were rooted in a lack of clarity about
"exactly what duties these plaintiffs performed." The District
Court considered two forms of evidence in making this
determination: official job descriptions and testimony from the
plaintiffs about the duties they performed.
2 It is not a problem to rest the denial solely on the second
question, since we have said that "[a]nalytically, the second
question may often be answered without resolving the first."
López-Quiñones, 526 F.3d at 25.
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Second, the District Court determined that, "in the
alternative," the defendants were not entitled to summary judgment
based on qualified immunity because there were genuine issues of
material fact as to whether the defendants themselves had
considered the nature of the plaintiffs' job duties before taking
actions to have them removed from their positions in the Senate.
The District Court explained that the question of whether the
defendants considered the nature of the plaintiffs' job duties
mattered because “a reasonable public official in light of the
First Circuit’s developed case law must at least inquire as to the
nature of the duties of the position based upon the history of
political discrimination cases in Puerto Rico.” Accordingly, the
District Court "question[ed] whether qualified immunity should
inure to the benefit of defendants in political discrimination
cases where there is no evidence that the officials’ actions
included examining any of the plaintiffs’ duties at all.”
B.
We start with the defendants' challenge to the District
Court's second ground for denying their summary judgment motion
based on qualified immunity, in which the District Court determined
that there were genuine issues of material fact about whether the
defendants themselves had considered the nature of the plaintiffs'
job duties. The defendants argue that the District Court committed
legal error by relying on the existence of those issues, because
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the District Court thereby impermissibly "import[ed] a subjective
diligence standard into the qualified immunity framework."
This challenge does not take issue with any of the
District Court's factual premises. It takes issue only with a
purely legal judgment that the District Court assertedly wrongly
made. Because, under Johnson, we have appellate jurisdiction to
assess this "purely legal" issue, see 515 U.S. at 313-16, there is
no jurisdictional bar to our addressing this challenge to the
District Court's qualified immunity ruling.
As to the merits of the defendants' contention that the
District Court erred as a matter of law in relying on this ground
for denying their motion for summary judgment based on qualified
immunity, the District Court relied on the reasoning set forth in
a dissent to one of our prior precedents, López-Quiñones, 526 F.3d
at 29-30 (Torruella, J., concurring in part, dissenting in part).3
We explained in López-Quiñones, however, that "[l]argely for
prudential reasons, the test" for the qualified immunity inquiry,
"is not subjective but asks what a reasonable official would have
3Judge Torruella asserted that it is "inconceivable in this
day and age that a reasonable public official would by-pass an
inquest into whether a position in a government agency requires
political affiliation before taking the drastic action of firing
an employee based on party affiliation. Considering the state of
the law, one who fails to do so can hardly be classified as a
reasonable public official." López-Quiñones, 526 F.3d at 29
(Torruella, J., concurring in part, dissenting in part).
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thought." 526 F.3d at 27. Consistent with that objective inquiry,
the majority in López-Quiñones assessed for itself the duties and
responsibilities of the fired employees in the case and did not
assess how the defendants themselves came to their understanding
of the fired employees' job duties. Id. at 27-28. We therefore
read López-Quiñones to have rejected Judge Torruella's contention
in dissent that a reasonable official must "inquest into whether
a position in a government agency requires political affiliation
before taking the drastic action of firing an employee based on
party affiliation," in order to be protected by qualified immunity.
526 F.3d at 29 (Torruella, J., concurring in part, dissenting in
part).
As a result, we agree with the defendants that the
existence of genuine issues of material fact about whether the
defendants themselves considered the nature of the plaintiffs' job
duties has no bearing on whether the defendants are entitled to
qualified immunity. It follows that the District Court erred, as
a matter of law, in denying the motion for summary judgment on
that particular ground.
C.
Nonetheless, as we have noted, the District Court also
denied the defendants' motion for summary judgment based on
qualified immunity on a distinct ground. In doing so, the District
Court denied the motion because it determined that "genuine issues
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of material fact preclude a determination of objective
reasonableness for qualified immunity to attach on this record."
We thus need to address the defendants' challenge to that basis
for the District Court's ruling denying their motion for summary
judgment based on qualified immunity.
In pressing this challenge, the defendants contend
that:
[E]ven if this Court does not address whether
Colón-Rodríguez, Vega-Alameda, and
Pons-Anaya’s positions were protected
positions, Defendants-Appellants are still
entitled to qualified immunity. That is
because . . . an objectively reasonable
official in Defendants-Appellants’ position,
acting at the time of Colón-Rodríguez’
termination, could conclude that the position
of Protocol Officer in the [Office of Protocol
and Activities] was not constitutionally
protected. The same goes for the Liaison
Technician [i]n the [Office of Governmental
Affairs] position formerly held by
Vega-Alameda and Pons-Anaya." (footnote
omitted).
Insofar as the defendants, in pressing this challenge, mean to be
taking issue with the factual premises on which the District Court
relied in denying them summary judgment, we are barred from
considering the challenge's merits under Johnson. See 515 U.S. at
307 (holding that since "[t]he order in question resolved a
fact-related dispute about the pretrial record . . . the
defendants cannot immediately appeal this kind of fact-related
district court determination" (emphasis in original)). But,
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ultimately, the defendants contend that, "even accepting [the
plaintiffs'] version of the facts, [they] are entitled to qualified
immunity on the ground that a reasonable official in their position
could have believed that the First Amendment permitted the
terminations." And we have appellate jurisdiction to address this
ground for challenge under Johnson, as it raises a purely legal
question -- namely, whether, as a matter of law, the job positions
at issue were such that a reasonable official could have understood
them to have been unprotected.
Even still, an appellant must "develop the argument
that, even drawing all the inferences as the district court
concluded a jury permissibly could, they are entitled to judgment
as a matter of law." Cady v. Walsh, 753 F.3d 348, 359-60 (1st
Cir. 2014) (emphasis added); see also McKenney v. Mangino, 873
F.3d 75, 81 (1st Cir. 2017) ("In other words, an appellant must
explain why he is entitled to qualified immunity even if one
assumes that the district court properly analyzed the facts.").
The defendants have not done so here.
To that point, the defendants assert as to the position
of one of the three former Senate employees in question that:
[E]ven assuming that on the spectrum
Colón-Rodríguez’s position was closer to a
non-policymaker and is, at least on the
present record, protected under [Elrod v.
Burns, 427 U.S. 347 (1976)] -- an objectively
reasonable official in Defendants-Appellants’
position, acting at the time of
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Colón-Rodríguez’ termination, could conclude
that the position of Protocol Officer in the
[Office of Protocol and Activities] was not
constitutionally protected.
But this conclusory assertion fails to engage with the District
Court's reasoning, which, as noted above, rested in part on
testimony about the plaintiffs' job duties and not merely formal
job descriptions. It thus fails to explain why the position was
one that, as a matter of law, a reasonable official could deem it
to be unprotected when the evidence is viewed in the light most
favorable to the plaintiffs.
A similar problem plagues the defendants' further
contention that "when reasonable officials could disagree about
whether a position is exempt from political patronage dismissal,
qualified immunity must apply." Here, too, the assertion sets
forth a conclusion rather than an argument.
It is possible that, in making those seemingly
conclusory assertions, the defendants mean to be arguing that, as
a matter of law, the formal job descriptions of the three former
employees are such that, in and of themselves, they compel the
conclusion that a reasonable official could deem the positions
unprotected. In other words, the defendants may mean to be arguing
that, whatever the testimony on which the District Court relied in
denying summary judgment might show, that testimony is simply
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irrelevant for purposes of the qualified immunity inquiry because
of the nature of the plaintiffs' formal job descriptions.
The defendants do gesture at such an argument when they
assert in a footnote the following from Colón's official job
description -- that she was responsible for coordinating,
developing, and participating in the official activities of the
Puerto Rico Senate, and that she was "exercis[ing] initiative and
personal judgment in the performance of his or her duties." These
duties, the defendants suggest, "might have led a reasonable
official involved in the termination decision to believe she was
subject to patronage dismissal."
In that same vein, the defendants also contend that
"[t]he formal job descriptions . . . set forth broad duties
implicating discretion, initiative, and public-facing
responsibilities that support a reasonable inference that
political affiliation could be a legitimate employment criterion."
And they emphasize at one point (and again in a footnote) that we
have held that, with respect to assessing job duties, “what counts
are the attributes inherent in the position -- its duties and
powers -- as opposed to the work actually performed by a quondam
holder of that position.” Galloza v. Foy, 389 F.3d 26, 31 (1st
Cir. 2004).
The defendants do not develop any argument, however, as
to why the determination of "the attributes inherent in the
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position" are a function solely of the formal job descriptions, no
matter what other evidence might reveal about the job duties for
that position. This variant of the potential argument is therefore
waived for lack of development. See United States v. Gonsalves,
859 F.3d 95, 112 n.7 (1st Cir. 2017) ("[W]e don't have to parse
[the argument] out any further because the argument is undeveloped,
and undeveloped arguments are waived.").
IV.
For the reasons set forth above, the District Court's
order denying summary judgment based on qualified immunity that is
at issue in this interlocutory appeal is affirmed.
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