USCA1 Opinion

September 10, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________
No. 92-1227
DINHORA QUINTERO de QUINTERO,
Plaintiff, Appellant,
v.
AWILDA APONTE-ROQUE, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
___________________
_________________________
Before
Selya, Cyr and Boudin, Circuit Judges.
______________
_________________________

Luis F. Abreu Elias on brief for appellant.

___________________
Anabelle Rodriguez, Solicitor General, and Vannessa Ramirez,
__________________
________________
Assistant Solicitor General, Department of Justice, on brief for

appellees.
_________________________

_________________________

SELYA,
SELYA,
of
Rico

Circuit Judge.
Circuit Judge.
_____________

the United States District

granting

summary

that

established

the

Court for the

judgment

qualified immunity grounds.

show

This is an appeal from an order

defendants'

in the

District of Puerto

defendants'

favor

on

Because the plaintiff has failed to

actions

violated

any

clearly

right assured by federal constitutional or statutory

law, we affirm.
I. BACKGROUND
I. BACKGROUND
Plaintiff-appellant

Dinhora

Quintero

de

Quintero

(Quintero), a citizen of Colombia, was hired on September 2, 1986

by the Department

of Public Education (DPE)

of the Commonwealth

of Puerto Rico

as a speech therapist.

was unceremoniously cashiered.

firing by reference to

Ten days later, Quintero

Her superiors justified

a local statute making United

the

States (or

Puerto Rico) citizenship an indispensable requirement for teacher

qualification in the Commonwealth's public schools.1
In May of 1987,

appellant sued.

1983 (1988), she alleged discrimination

origin in

Invoking 42

on the basis of national

violation of the federal Constitution.

named

as defendants

three ranking

moved

for summary judgment.

U.S.C.

DPE officials.

Her complaint
Both

sides

The district court issued a Pullman

_______

stay in early 1989, see Railroad Comm'n

___ _______________

v. Pullman Co., 312 U.S.

___________

____________________

1The statute in question provides that all "[c]andidates to

obtain a teacher's certificate" shall "be . . . citizen[s] of the
United States of America or of Puerto Rico." P.R. Laws Ann. tit.
18,
264(1) (1989).
It is undisputed that the position for
which Quintero was hired requires certification.
Moreover,
Quintero does not contend that the position differs materially
from other teaching positions in the public schools.
2

496 (1941),

because an arguably related case

the Puerto Rico Supreme Court.

1989.

See

Paz Lisk v.

was pending before

That case was decided on June 30,

Aponte Roque, 89

JTS 69 (1989).

After

___
mulling

________

the

district

II.
II.

matter for

court

defendants.

____________
a

entered

considerable
summary

period

judgment

in

appropriate

if

of

time,

favor

the

of

the

This appeal followed.

THE SUMMARY JUDGMENT STANDARD

THE SUMMARY JUDGMENT STANDARD
Summary

judgment

is

"the pleadings,

depositions, answers to interrogatories,

and admissions on file,

together

show

with

the affidavits,

genuine issue as to

party

responsibility
material

(1986); Garside
_______
1990).

The

matter of law."

seeking summary

judgment

of suggesting the

fact.

that there

any material fact and that the

is entitled to a judgment as a
56(c).

if any,

v. Osco Drug, Inc., 895

________________

opposing party

bears

Catrett,
_______

"must

moving party

Fed. R. Civ.

absence of a

Celotex Corp. v.
______________

the

denied,
______
material

112 S.

Ct. 2965

477 U.S.

F.2d 46, 48

then document

facts are

undisputed,

summary judgment becomes

816, 822 (1st Cir.

(1992).

one of

When, as
the question
law.

some

initial

on

317, 323

(1st Cir.

factual

Mesnick
_______

1991), cert.
_____

in this

Appellate

district court's ensuing decision is plenary.

P.

genuine issue of

disagreement sufficient to deflect brevis disposition."

______
v. General Elec. Co., 950 F.2d
__________________

is no

case, the

a motion

for

review of

the

See id.; Garside,

___ ___ _______

895 F.2d at 48.

In appraising summary judgments,
the

district court's reasoning.

we are not limited to

Instead, the

court of appeals

may "affirm the

entry of summary

judgment on any

sufficient ground made manifest by the record."

independently

United States v.
_____________

One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).
___________________________
III.
III.

QUALIFIED IMMUNITY
QUALIFIED IMMUNITY

Government officials exercising discretionary authority

are

entitled to

qualified immunity

section 1983 "insofar as

established

statutory

U.S. 800, 818 (1982).

of

the

right

official would
right."
the

must

have known."

understand that what

of

which

v. Fitzgerald, 457
__________

clear
he is

that

reasonable

doing violates

Creighton, 483 U.S. 635, 640 (1987).

_________
is

not whether

the defendants

plaintiff's constitutional rights.

occurred

violate clearly

rights

Harlow
______

be sufficiently

operative inquiry

violation

constitutional

claims under

To be "clearly established," the "contours

Anderson v.
________

abridged the

their conduct does not

or

reasonable person would

in respect to

is

not

enough

to

pierce

that

Thus,

actually

The fact that a

the

shield

of

qualified immunity
defendants']
standard."

"unless it is further

conduct

was

unreasonable

Davis v. Scherer,
_____
_______

demonstrated that [the

under

468 U.S. 183,

the

applicable

190 (1984); accord

______

Amsden v. Moran, 904 F.2d 748, 751 (1st Cir. 1990), cert. denied,
______
_____
_____ ______
111 S. Ct. 713 (1991).
In
offers

essence, then,

sanctuary not only

have

prospective

of qualified

to government officials

impeccable propriety, but

reasonably

the defense

also to

understood

that

plaintiff's federally

those who err

their

who act with

but could

actions

assured

immunity

infracted

rights.

not

See, e.g.,
___ ____

Amsden, 904 F.2d at 752; Brennan v. Hendrigan, 888 F.2d 189,

______
_______
_________
(1st Cir.

1989); see also

___ ____

474,

(1st

478

entitled

Collins v. Marina-Martinez,
_______
_______________

Cir. 1990)

(noting

that

"a

192

894 F.2d

plaintiff who

is

to prevail on the merits is not necessarily entitled to

prevail on the issue of qualified immunity").

touchstone of an inquiry

Definitively, the

into qualified immunity is whether

the

state actor's behavior was objectively reasonable, as a matter of

federal law,
obtaining.

at

the

time

and

under

the

circumstances

then

See Amsden, 904 F.2d at 751.

___ ______

A court embarking on an inquiry into qualified immunity

must

invariably

determine

whether

some

right emanating

from

federal constitutional or statutory law was "clearly established"

at the

time of

the alleged violation.

examination sometimes calls into

has

asserted a

violation of

Gilley, 111 S.
______

Ct. 1789,

F.2d

(1st

784, 787

summary

See id.
___ ___

question whether the

a right

at all.
______

1793 (1991); Morales

_______

Cir. 1990).

judgment on the basis

at 752.

When a

See
___

This

plaintiff

Siegert v.
_______

v. Ramirez,
_______

906

defendant moves

for

of qualified immunity,

it is the

plaintiff's burden to demonstrate the infringement of a federally

assured right.
1430

(1st

prevails.
IV.
IV.

See Castro-Aponte v. Ligia-Rubero, 953 F.2d 1429,

___ _____________
____________

Cir. 1992).

If

she fails

to

do

so, the

movant

Id. at 1431.
___

ANALYSIS OF THE EQUAL PROTECTION CLAIM

ANALYSIS OF THE EQUAL PROTECTION CLAIM
In

the

case

at

hand,

terminating her employment solely

appellant

claims

on the basis of

that,

by

alienage, the

defendants violated a clearly established right which should have

5

been

apparent to

1986.

reasonable

She points to

Clause

school officials

longer

think of
in

force,

Protection Clause

of

the federal Constitution's Equal Protection

as the principal source

one may

in September

the local
we

of the claimed

statute

believe

right.

in question,

appellant's

which is

view of

has been largely discredited

Whatever

the

no

Equal

by Supreme Court

case law that we are bound to respect.

A.
A.
__
Although
fall

within

it has

long been

the purview

of

held that

the Equal

resident aliens

Protection

Clause, see
___

Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Examining Bd. of Eng'rs

_______
_______
_______________________
v.

Flores de Otero,
_________________

Richardson,
__________
33, 39

U.S.

403 U.S. 365, 371

572,

602

(1976);

(1971); Truax v.
_____

Graham
______

v.

Raich, 239 U.S.

_____

(1915); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), the

_______
_______

rule is
Puerto

not without its

Rico,

opinion,
can,

426

for purposes

is to be

"in an

recognized exceptions.
of the

exception discussed

treated at least

appropriately defined

A State

as generously as
class of

and

in this
a State

positions, require

citizenship as a qualification for office" without departing from

the constitutional

restraints of

the

Equal Protection

Clause.

Sugarman
________
permitted

v. Dougall,
_______

of a political

330, 344

"persons

U.S. 634,

to define these classes

conception
U.S.

413

(1972).

holding

647

(1973).

so as "to

community."

state

elective

or

are

preserve the basic

Dunn v.
____

Exempt classes may,

States

Blumstein, 405
_________

therefore, include

important

nonelective

executive, legislative, and judicial positions, for officers

who

participate directly in the

broad public policy
representative
is

formulation, execution, or review of

perform functions

government."

whether a plausible nexus

demands of a particular
another way,

a State may

that go to

the heart

Sugarman, 413 U.S. at 647.

________

of

The key

exists between citizenship and the

position in the public sector.

justify its exclusion of

Phrased

aliens "by a

showing of some rational relationship between the interest sought

to be

protected

and the

limiting

Connelie, 435 U.S. 291, 296 (1978).

________

classification."

Foley
_____

v.

To find if this governmental

function exception applies in a given instance, a reviewing court

must

ask

whether

discretionary

the "position

decisionmaking,

in

or

substantially affects members of

question

execution

.
of

. .

involves

policy,

which

the political community."

Id.;
___

accord Cabell v. Chavez-Salido, 454 U.S. 432, 440-41 (1982).

______ ______
_____________
B.
B.
__
In respect to teachers, the case
441

U.S. 68

(1979), provides

Court examined a New

employment
teaching
within the

as public
in public
sweep

acknowledged the
"'Today,

luminous

authority.

There, the

York law allowing exclusion of

aliens from

school teachers.
schools constitutes a

of

the

In

determining whether

governmental function

Sugarman doctrine,
________

importance of public schools

education is

perhaps

the most

state and local governments. . . .

good citizenship.'"
347 U.S.

of Ambach v. Norwick,
______
_______

Court

first

in our democracy:

important function

of

It is the very foundation

of

Id. at 76 (quoting Brown

___
_____

483, 493 (1954)).

the

v. Board of Educ.,
______________

The Court then focused on the nature

7

of public education and the degree of responsibility thrust

teachers in the due performance of their mission.
80.

Teachers,

developing

Justice Powell

students'

understanding of
78.
to

wrote, "play a

attitude

toward

the role of citizens

upon

See id. at 78___ ___

critical part

government

in

and

[their]

in our society."

Id. at
___

He also observed that a teacher possesses wide discretion as

how course material is

communicated to students;

she

inevitably serves as a

the

presentation of course materials and the example he [or she]

sets,

role model; and

that he or

that, "through both

a teacher has an opportunity to influence the attitudes of

students

toward

the

political

citizen's social responsibilities."

Id. at 79.
___

On this
teachers,

as

government,

basis, the court concluded

a class,

come

exception and, therefore, "the

within

Id. at
___

a rational
80.

The

that public school

the governmental

function

relationship to

teaching in public schools

a legitimate

Court concluded that

state interest."

the New York

narrowly tailored

to serve its purpose because

those

refused to

aliens who

and

Constitution requires only that a

citizenship requirement applicable to

bear

process,

obtain United

statute was

it excluded only

States citizenship.

Id. at 80-81.
___
C.
C.
__
In light

of

Ambach, we
______

think that,

in September

of

1986,

it

did

constitutional

not

violate

right for

any

clearly

an education

teacher's employment in conformity

established

official to

federal

terminate a

with a statute barring aliens

from holding teaching positions.

that
its

the Puerto Rico statute

While it is at

has a somewhat

to uphold

statutes

that barred

serving in certain government positions.

U.S. at

441-42 (deputy probation

981-82 (5th

agency's bylaws
directors
890,

Cir. 1981)

from

e.g., Cabell, 454

____ ______

officers); Foley, 435

_____

(holding

excluding aliens

aliens totally
_______

See,
___

299-300 (state troopers); see also Cervantes

___ ____ _________

F.2d

broader reach than

New York counterpart, approved in Ambach,2 the Court has not

______

hesitated

974,

least arguable

U.S. at

v. Guerra, 651 F.2d

______

that a

from service

community action
on the

board of

did not deny equal protection); cf. Campos v. FCC, 650

___ ______
___
893-94

prohibiting the
commercial radio

(7th

Cir.

1981)

(holding

that

Federal Communications Commission

operators' licenses

to aliens did

statute

from granting

not violate

the Fifth Amendment's Due Process Clause).

Court

itself

political
process

suggested

that

State

Moreover, the Ambach

______
may

exclude

from

its

functions "all persons who have not become part of the

___
of self-government."

supplied).

We

conclude,

Ambach, 441 U.S.

______

therefore, that

at 74 (emphasis

the defendants

were

entitled to qualified immunity as a matter of law.

V.
V.

MISCELLANEOUS ARGUMENTS
MISCELLANEOUS ARGUMENTS
We

pause briefly

advanced by the
discharge

was

appellant.
actionable

to

address

two

other

contentions

First, Quintero asseverates that her

under

42 U.S.C.

1983

because it

____________________

2Whereas aliens not yet eligible for citizenship were exempt

from the New York statute considered by the Ambach Court, see 441
______
___
U.S. at 70, Puerto Rico's statute prohibits all aliens from
___
obtaining certification. See P.R. Laws Ann. tit. 18,
264(1).
___
9

transgressed the Puerto Rico Constitution and, thus, transgressed

federal

law.

We disagree.

The

notion that

the

Puerto Rico

Constitution should be considered a federal law for

flies

this purpose

in the teeth of this court's earlier opinions.

United States v. Quinones, 758

______________
________
By the same

token, the

F.2d 40, 42-43

fact that the

See, e.g.,
___ ____

(1st Cir. 1985).

Puerto Rico

Constitution

itself prohibits discrimination on the basis of alienage does not

assist

appellant.

A federal court may not order state officials

to conform their behavior

and Hospital
____________
extent

to state law.

v. Halderman,
_________

465 U.S.

Pennhurst State School

_______________________

89, 106

(1984).

To

the

that appellant seeks relief based on Puerto Rico law, her

remedy, if any, lies in the courts of the Commonwealth.

Appellant's
district

court erred in

however, is

moot.

last

questions

abstaining under Pullman.

_______

Whether or

which we take no view

argument

not error inhered

there is no effective relief

whether

the

That issue,

a subject on

that we now

can provide.

Courts are without jurisdiction to address academic

questions.3

See In re Stadium Management Corp.,

___ _______________________________

848

(1st Cir.

1990) (dismissing appeals

as moot

895 F.2d 845,

because court

____________________

3We note in passing that the district court's decision to

abstain was quite possibly an appealable event, see, e.g., Moses
___
____ _____
H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8-13
______________________
_____________________
(1983) (concluding that, on particular facts, a district court's
Pullman stay order was appealable); Idlewild Liquor Corp. v.
_______
______________________
Epstein, 370 U.S. 713, 715 n.2 (1962) (per curiam) (order of
_______
district
court
staying proceedings,
premised
on Pullman

_______
abstention, held to be immediately appealable); Bridge Constr.
_______________
Corp. v. City of Berlin, 705 F.2d 582, 583 (1st Cir. 1983)
_____
________________
(discussing the appealability issue in the context of Pullman
_______
abstention), yet appellant eschewed any attempt to effectuate an
immediate appeal.
Her effort to raise the issue at this late
date is, therefore, especially unbefitting.
10

could provide no meaningful relief).

VI.
VI.

CONCLUSION
CONCLUSION
We need go no further.

may

evoke a certain amount

Although the plaintiff's plight

of sympathy, the

undisputed fact is

that

her

dismissal

implicated no

breach

of

a clearly

established

federal constitutional or statutory right.

The judgment below is summarily affirmed.

________________________________________
R. 27.1.
_______

Costs to appellees.
__________________

See 1st Cir.

____________

11