Ngel Villanueva-Méndez v. RÁMON L. NIEVES-VÁZQUEZ, in his personal capacity

United States Court of Appeals
For the First Circuit
No. 05-1638
ÁNGEL VILLANUEVA-MÉNDEZ; LUZ IRAIDA HERNÁNDEZ-PÉREZ;
CONJUGAL PARTNERSHIP VILLANUEVA-HERNÁNDEZ,
Plaintiffs, Appellants,
v.
RÁMON L. NIEVES-VÁZQUEZ, in his personal capacity; SAMUEL
GONZÁLEZ, in his official capacity as Executive Director of the
National Parks Company; SAMUEL GONZÁLEZ, in his personal capacity
and in his official capacity as Deputy Director of Facilities of
the National Parks Company; DEFENDANTS X, Y and Z,
Defendants, Appellees.
_________
EDNA PÉREZ-TOLEDO, in her personal capacity and in her official
capacity as Assistant Superintendent of the National Parks
Company; SONIA CANCEL, in her personal capacity and in her
official capacity as Director of Human Resources of the National
Parks Company; NILDA SOTOMAYOR, in her personal capacity and in
her official capacity as Director of Administration of the
National Parks Company.
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

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Rafael A. Machargo for appellants.
Irene S. Soroeta-Kodesh, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor
General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor General,
were on brief for appellees Ramón Luis Nieves-Vázquez and Samuel
González, in their personal capacities.
Luis R. Pérez-Guisti with whom Mignucci and Pérez-Giusti PSC
was on brief for appellee Samuel González, in his official
capacity.
March 1, 2006

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BOUDIN, Chief Judge. This is an appeal from the
dismissal of a suit by Angel Villanueva-Mendez charging several
officials of a Puerto Rico agency with demoting him for politically
discriminatory reasons. Because the matter was resolved in the
defendants' favor on summary judgment based on a statute of
limitations defense, the facts are recited in the light most
favorable to Villanueva. Morris v. Gov't Dev. Bank of P.R., 27
F.3d 746, 748 (1st Cir. 1994).
From July 1997 to June 2000, Villanueva, an active member
of the New Progressive Party ("NPP"), occupied a trust (i.e., non-
career) position in a Puerto Rico government authority now called
the National Parks Company. In June 2000, he became Park Director
of the Camuy River Caves Park ("Camuy"), a permanent career
position under Puerto Rico law. In January 2001, after the Popular
Democratic Party ("PDP") won the general election, a new PDP
governor took office and Ramon Luis Nieves-Vazquez was named
Executive Director of the National Parks Company.
On February 20, 2001, Nieves met with Villanueva to
discuss a new initiative within the National Parks Company, the
creation of a Quality Standards Committee. There followed a
letter to Villanueva, received on February 28 and reading (in
translation) as follows:
February 27, 2001
Mr. Angel Villanueva Mendez
Director, Camuy River Caves Park

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SPECIAL ASSIGNMENT
Last February 20, I held a conversation with
you regarding the projects that are to be
carried out with the creation of the Puerto
Rico National Parks Company, specifically, the
creation of a Quality Standards Committee.
As per our conversation, and due to service
needs, I hereby notify you that effective
March 1, 2001, I am assigning you to work in
the Quality Standards Committee in the
headquarters of Puerto Rico National Parks
Trust. You will have flexible working hours.
In order that this assignment not be onerous
to you, I am approving a differential amount
of $195.00 monthly for the duration of the
project. This assignment will not affect your
employee status or your monthly salary.
We hereby notify you that you are entitled to
appeal the foregoing assignment within thirty
(30) days of receipt of this letter if you
think that your rights have been violated.
We expect your usual collaboration.
Sincerely,
[signature]
Ramon Luis Nieves, Esq.
Executive Director
Starting March 1, 2001, Villanueva began traveling to the
National Parks Company's central offices in San Juan three days a
week, to attend to the duties of his new assignment. On March 9,
he suffered a work-related accident that kept him away from work
until May 18. While on leave, Villanueva sent Nieves a letter,
dated March 27 and captioned "APPEAL OF SPECIAL ASSIGNMENT." In

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the letter, Villanueva asked Nieves to "reconsider my assignation
to the Quality Standards Committee." He continued:
I believe that this transfer, disguised as an
assignment, . . . violates my rights as a
permanent employee of our agency.
In the first place, I am relieved of my duties
as Director of the Camuy River Caves Park,
without any justification, in order to place
another person that has the trust and the
political affiliation of the appointing
authority. . . .
Therefore, this transfer is not justified,
removing me from my place of work, on the
grounds that it responds to service needs.
The nature of the service need is not stated
either. However, I was not assigned functions
or duties, either specific or concrete, in the
alleged special assignment. . . .
Villanueva concluded by asking "that this situation be corrected"
and that he "be reinstated as Director of the Camuy River Caves
Park, with all my rights, duties, and prerogatives as a public
servant."
Instead, on May 21, 2001, just as Villanueva returned to
active duty, Nieves announced a newly-created position within the
National Parks Company--"Park Coordinator"--to be filled by Angel
Lopez-Lopez. According to Villanueva, the new appointee was "a
known PDP activist," and he "was going to be in charge of [Camuy]
from that day on." That same day, Villanueva requested a meeting
with Nieves and asked him "about this stripping of functions";
Nieves responded (according to Villanueva), "In the past you were

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a confidential employee and you must understand that I have to
choose my people."
The next day, May 22, Nieves sent Villanueva a letter
describing the tasks that Villanueva "will be performing full-time
as part of the Quality Standards Committee." Villanueva sent a
letter of his own to Nieves on May 23--their two letters apparently
crossed in the mail--appealing "the decision to unlawfully remove
me from my functions as the Park Director for the Camuy River
Caverns." Referring back to the May 21 meeting at which Nieves
announced the appointment of Lopez, Villanueva recalled that
[a]t that meeting, among other things, you
asked me to vacate my office since it was
going to be occupied by Mr. Angel Lopez-Lopez,
Special Assistant that you were appointing as
the Park Director. . . .
On the other hand, you informed me that during
two days a week I would be working in San
Juan, as part of the job assignment you gave
me, and through which you had me direct the
Service Quality Standards Committee. In
addition, you told me that the rest of the
week's work days I'd be reporting to the Camuy
River Caverns Park, but that I would be doing
the Service Quality Standards Committee work.
. . . I asked you to tell me how my functions
would be affected by the appointment of Mr.
Angel Lopez-Lopez. You pointed out to me that
you would let me know subsequently. At the
time I write this communication I have not yet
been informed anything about it.
I understand that this whole situation[]
constitutes an unlawful removal of functions .
. . . As Park Director, I was the person in
charge of it and the one with the highest
hierarchy, I would take care of all matters at
the administrative level, working Monday

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Federal law borrows the local statute, Morris, 27 F.3d at 748 1
(citing Wilson v. Garcia, 471 U.S. 261, 269 (1985)), and the
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through Friday, I had my own office with a
secretary, telephone with an access code to
make calls through the local switchboard, and
also had a direct telephone line available to
me. In fact, whenever I traveled to San Juan
or other towns, I could make use of an
official vehicle with a driver.
This whole new situation that you all have
created within the agency, the supposed
reorganization that as you told me has not yet
been comp[l]eted, has constituted a removal of
my functions as the Park Director for the
Camuy River Caverns.
Villanueva filed the present law suit, under 42 U.S.C. §
1983 (2000), on May 17, 2002. He alleged that the injury of which
he complained occurred on May 21, 2001, when he "was transferred
and actually demoted involuntarily while simultaneously keeping
just the title of Park Director." The defendants (ignoring three
others later dropped from the case) were Nieves and Samuel
Gonzalez, who was described in the complaint as the Deputy
Executive Director of the National Parks Company. The complaint,
later amended in respects not relevant here, also asserted claims
under Puerto Rico law.
The defendants moved for summary judgment, asserting that
the section 1983 claim--brought on May 17, 2002--had accrued in
February or March 2001 and so was barred by the applicable Puerto
Rico one-year statute of limitations. It is common ground that the
Puerto Rico one-year period applies, but federal law determines 1

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applicable limitations period in Puerto Rico is one year, P.R. Laws
Ann. tit. 31, § 5298 (2002); see also Morris, 27 F.3d at 748.
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the starting (or accrual) date, Morris, 27 F.3d at 748. Accrual
commences, for federal law purposes, when a plaintiff "knows, or
has reason to know, of the discriminatory act that underpins his
cause of action." Id. at 749 (citing Chardon v. Fernandez, 454
U.S. 6, 8 (1981)).
The district court agreed with the defendants that
Villanueva's federal claim accrued "at the latest[] on February 28,
2001 when he received the letter informing him of his new
assignment." The court dismissed the federal claim as barred by
the statute of limitations and dismissed somewhat different claims
under Puerto Rico law without prejudice. See 28 U.S.C. §
1367(c)(3) (2000). Villanueva now appeals, and our review is de
novo, drawing inferences in his favor. Morris, 27 F.3d at 748.
At the outset, it is worth noting that Villanueva may not
be protected against "political discrimination" at all. Supreme
Court doctrine, creating such a constitutional claim under the
aegis of the First Amendment, distinguishes between positions for
which political affiliation is a legitimate requirement
(policymakers, confidential assistants, and so on) and those for
which it is not a permissible basis for hiring or dismissal. See
Branti v. Finkel, 445 U.S. 507, 518 (1980); Elrod v. Burns, 427

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U.S. 347, 372 (1976); see also Flynn v. City of Boston, 140 F.3d
42, 44-46 (1st Cir.), cert. denied, 525 U.S. 961 (1998).
Save at the ends of the spectrum, whether a position is
immune to "political discrimination" is often debatable, dependent
on a host of variables; but there is also an inclination to have
the judge resolve the issue based primarily on the official
description of the position's duties. See Duriex-Gauthier v.
Lopez-Nieves, 274 F.3d 4, 8 (1st Cir. 2001). In all events, the
question is resolved under federal constitutional standards; that
a claimant may be a trust employee under Puerto Rico law or instead
have civil service protection (as Villanueva does) is not decisive
as to the 1983 claim, id., although claims under Puerto Rico law
turn on the trust/career distinction.
Villanueva, as Camuy park director, was likely performing
executive functions in some degree; but we have been given no
position description and furnished with few details. Nor have the
defendants moved for summary disposition of Villanueva's claim on
this ground. At the same time, our decision does not rest on any
implicit assumption that Villanueva is entitled to constitutional
protection; rather, it is an open question which, having not been
raised, is also not here resolved.
We turn, then, to the statute of limitations which the
district court found to bar Villanueva's federal claim. Standing
alone, Nieves' original assignment of Villanueva to the Quality

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Standards Committee is ambiguous in two respects: as to duration
and, more important, as to whether it terminated Villanueva's
position as Camuy park director. Even after the events of May
2001, Villanueva concedes that his formal status and pay remained
that of a "director," but whether this designation refers generally
to "rank" in the civil service hierarchy or to the office of Camuy
park director is a different matter.
Unfortunately for Villanueva, his March 27, 2001, letter
says: "In the first place, I am relieved of my duties as Director
of the Camuy River Caves Park, without any justification, in order
to place another person that has the trust and the political
affiliation of the appointing authority." It goes on to request
that "I . . . be reinstated as Director of the Camuy River Caves
Park, with all my rights, duties, and prerogatives as a public
servant."
These statements by Villanueva reflect a recognition
that, as of March 2001, he had been ousted as Camuy park director
and that his replacement was or would be a political appointee.
This did not mean that his special assignment was permanent; but he
had no apparent reason to think that, at its end, the new
administration would remove his political replacement and reinstate
him as Camuy park director. So Villanueva certainly knew enough in
March 2001 to bring a political discrimination claim for his
ouster.

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The letter's powerful inference of knowledge might have
been countered, if the facts so permitted, by a counter-showing
from Villanueva that he had nevertheless in fact been allowed to
continue his duties as Camuy park director until the events of May
2001. Yet he says himself that he was excluded after February 2001
from travel and training that were customarily part of a park
director's role. Beyond this, we know only that he spent several
days a week at the Camuy park facilities and, seemingly, retained
until May his original office space and certain perks (e.g., a
chauffeured car).
In a legal filing with the district court, Villanueva
said that he was "still officially performing two days a week his
functions as Park Director" until May 2001. But his only citation
for this statement is to factual allegations in the complaint which
neither directly support the inference nor carry weight once the
issue has been posed on summary judgment by evidence proffered by
the opponent. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-52 (1986); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42
(1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994).
Thus, the only direct evidence before the district court
was Villanueva's own letter indicating that by March 2001 at the
latest, he knew he had been effectively supplanted as Camuy park
director in favor of someone who, in the eyes of the new
administration, had stronger political credentials. The time to

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bring a section 1983 claim on this ground was within one year of
February or March 2001. Villanueva did not do so and his federal
claim is therefore barred.
There is not much else to say. Villanueva argues that a
claim based on the special assignment that occurred in February
2001 would not automatically bar a separate claim for his removal
as Camuy park director in May, or that the latter should be viewed
as part of a "continuing violation." This might well work if his
removal dated only from May 2001; but his letter, as already
pointed out, complains of his removal–-not just his special
assignment–-in March 2001.
Villanueva also complains of the district court's failure
to act on his opposition to a defendant's request for a stay of
discovery; but, as the stay was not granted, how the failure to act
hurt Villanueva's claim is not apparent and never explained. At
oral argument his counsel said that Villanueva had himself sought
further discovery; but a look at his request under Fed. R. Civ. P.
56(f) indicates that this request for additional discovery related
to an alternative qualified immunity defense, which the district
court never reached.
Affirmed.

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