USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 96-1285

CARLOS J. NIEVES-VILLANUEVA, et al.,

Plaintiffs, Appellants,

v.

JOSE R. SOTO-RIVERA, Individually and as

Mayor of the Municipality of Canovanas, et al.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________

Cyr, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________
____________________

Carlos A. del Valle Cruz for appellants.

________________________

Miguel Pagan, with

_____________

whom Pagan & Pagan

______________

was on

brief, for

appellees.

____________________

December 22, 1997

____________________

LYNCH,
LYNCH,

Circuit Judge.
Circuit Judge.

Plaintiffs are

fifty-one

_____________

former

"transitory"

or

non-permanent

municipality of Canovanas, Puerto Rico.

their

claims that the

administration

employees

of

the

A jury found against

incoming New Progressive

Party (NPP)

failed to renew their contracts of employment

in various municipal jobs because they were supporters of the

prior Popular

Democratic Party

(PDP) administration

and so

violated their rights under the First Amendment.1

The

important

whether the district

question

raised

by this

court committed error in

testimony of an expert witness.

case

is

admitting the

The witness testified as to

what the law required and that her examination of plaintiffs'

personnel records led

been

improperly

to the conclusion that

hired

or

renewed

in

the

plaintiffs had

first

place.

Defendants did not testify this

of

their

decision

Although

such

permitted,

we

not

expert

to

was their reason at the time

renew

testimony

consider any

plaintiffs'

should

contracts.

not

alleged error

have

in light

been

of the

____________________

1.

This

court has

reviewed

numerous

claims of

firings or demotions from Puerto

Rico.

the

election

PDP won

Before that,
the NPP.

the

the governor's office

dismissals.

in

Puerto

was held by a

of

involved adverse actions less

That history is

v. Aponte-Roque,
____________
the

889 F.2d

Rico.

member of

court

is faced

hesitate to count

with

than outright

recited in Agosto-de-Feliciano
___________________

1209 (1st Cir.

governor's

governments switched, and

this

In November of 1984,

A first wave of cases involved outright dismissals;

the second wave

control

gubernatorial

political

office

1989).

and

of

the NPP came back to

another wave

of

which wave this is), brought

PDP members.

-2-

In 1992,
some

local

power.

Now,

litigation (we
this time by

evidence as a whole, and particularly in light of the judge's

instructions to the jury.

we consider

In the circumstances of this case,

the alleged errors harmless and

affirm the jury

verdicts.

I.
I

Plaintiffs

sued,

inter alios,2

Jose

Soto-Rivera

("Soto") and the Municipality of Canovanas under

1983, alleging

that they

political

beliefs

rights.

The

relief,

and

complaint

compensatory and

had been

dismissed

in violation

sought

of

42 U.S.C.

due to

their

their

due process

reinstatement,

injunctive

damages, and

attorney's

punitive

fees.

On

district court

noting

law,

defendants' motion

dismissed

that, under First

for

summary judgment,

plaintiffs'

due

process

Circuit precedent and

transitory employees generally

do not have

the

claims,

Puerto Rico

a property

interest in continued employment beyond their yearly terms of

appointment.

Cir.

See Caro v.
___ ____

Aponte-Roque, 878 F.2d 1, 4-5 (1st

____________

1989); see also Mel ndez

_________ ________

v.

Municipio de Arroyo, 96
____________________

J.T.S. Case No. 68, at p.

1077 (P.R. Sup. Ct. May 15,

1996)

(reaffirming that, as a matter of Puerto Rico law, transitory

employees

generally have

no "legitimate

expectation" to

____________________

2.

The district

court dismissed plaintiffs'

the other municipal defendants prior to trial.

-33

claims against

renewal

of

their

contracts);

Departamento
de Recursos
___________________________

Naturales v. Correa, 118 D.P.R. 689, 697 (1987) (same).3

_________
______

Before trial,

defendants retained

Blanca Santiago

as an expert in governmental personnel matters to examine the

plaintiffs' personnel

that

plaintiffs' initial

renewal appointments

law,

and that

"subterfuge"

evade

records.

appointments and,

were contrary to Puerto

the previous

to

Santiago's

renew the

administration

report concluded

in

some cases,

Rico municipal

had employed

plaintiffs' appointments

and to

a prohibition on making personnel decisions within two

months of

plaintiffs

a general election.

did

not

have

"a

The report also

legitimate

opined that

expectation

of

retaining employment."

Finally,

the report concluded

under the law of Puerto Rico, "the Municipality

that,

of Canovanas

could not continue extending said transitory appointments."

Upon receiving Santiago's report, plaintiffs made a

motion

in

limine

to

exclude

Santiago's

testimony.

Plaintiffs' principal objection was that the expert witness's

opinion concerning the

propriety of plaintiffs' appointments

____________________

3.

Defendants also moved

for

damages on

court

qualified immunity grounds.

denied defendants'

events in
that First

1993, the

motion,

Amendment protection

Aponte-Roque, 864
____________

See
___

The district

holding

First Circuit

renewals of employment.
v.

for summary judgment on the claims

that before

had clearly

extended to

the

established

political non-

Caro, 878 F.2d at 2-4; Figueroa

____
________

F.2d 947,

951 (1st

Cir. 1989).

The

district

court determined that there existed a genuine issue

of material fact concerning defendants' motives

in declining

to renew plaintiffs' transitory appointments.

-44

was not relevant

that

Soto

did

irregularities

to liability.

not renew

in how

Defendants did

plaintiffs'

they were

court denied plaintiffs' motion.

not maintain

appointments

appointed.

The

due to

district

II.
II

We state

them,

in

particular

the facts

the context

of

emphasis on

the

as the

jury could have

evidence

the evidence

as a

found

whole,

allegedly admitted

with

in

error.

Plaintiffs said they were affiliated with

one of Puerto Rico's major

was elected Mayor

political parties.

In 1992, Soto

of Canovanas as the candidate

the main rival of the PDP.

Soto was the first

the PDP,

of the NPP,

NPP candidate

elected as Mayor of Canovanas in several decades.

Plaintiffs

had been

appointed

mayor, Esteban Melendez-Rivera, to various

transitory

employees.

Those

by

the prior

PDP

municipal jobs as

jobs included manual

labor in

the

Public Works

offices,

clerical

minimal

salaries.

Department,

work,

and other

Under

Municipalities Act, 21 L.P.R.A.

may be appointed for a

one year.

lower

Puerto

in municipal

level

Rico's

jobs with

Autonomous

4554, transitory employees

limited term, generally not to exceed

Although plaintiffs, unlike other

in Puerto Rico, had no

the

janitorial work

civil servants

formal tenure in their jobs following

expiration of their contracts, many had been reappointed

-55

for

several one-year

terms as

a matter

of course.

Other

plaintiffs were in their first annual term of employment.

On January 15, 1993, three days after taking office

as Mayor of

that

Canovanas, Soto informed most

of the plaintiffs

their positions as transitory employees had expired and

that he would

plaintiffs'

not renew their

appointments

were

appointments.

The

temporarily

remaining

extended,

but

campaigned

for

eventually their appointments expired as well.

Plaintiffs

Esteban

testified

Melendez-Rivera,

mayoral election.

that

the PDP

they

candidate,

in the

1992

Plaintiffs testified that they had engaged

in

various PDP political

including

campaign

activities on behalf

of Melendez,

attending political meetings or taking part in the

rallies known

as caravanas
_________

typical of mayoral campaigning in

testified that Soto

("caravans") that

Puerto Rico.

are

Many of them

solicited their support, and,

when they

said they would support the incumbent PDP mayor instead, Soto

threatened

to

election.

leave

them

without

employment

after

the

Many plaintiffs also testified that they observed,

after their non-renewals, NPP

members performing the

duties

of the jobs they had performed as transitory employees.

In

plaintiffs

that

there

support

put

of

their

in evidence

was nothing

in

First

Amendment

their personnel

them that

would

claims,

files, arguing

indicate poor

performance.

Plaintiffs also presented an expert witness in

-66

personnel administration to bolster their claims of political

discrimination.4

Defendants'

position

considered plaintiffs' political

was

that

Soto

had

not

affiliation in his decision

to allow

their contracts to

witnesses:

Mayor

("Jimenez"),

government

denied

Soto,

and Blanca

personnel

the

expire.

Vice-Mayor

They presented

Miguel

Santiago, their

administration.

plaintiffs' allegations

retained or

hired PDP

Jimenez-Carrion

expert witness

Soto

that he

their jobs if they supported the incumbent.

had

members to

three

on

categorically

had threatened

He noted that he

municipal jobs.

He

testified that he had allowed plaintiffs' contracts to expire

because their services

essentially

that they had

were no longer needed.

the same version

of events.

not renewed the contracts

appointments had been irregular.

Defendants' Expert
__________________

Jimenez gave

Neither testified

because plaintiffs'

Defendants'

expert

witness,

Blanca

Santiago,

testified that the plaintiffs' personnel records demonstrated

that,

in many

Puerto Rico law.

employees

cases, their

appointments

were contrary

to

In particular, Santiago testified that many

had been

on the

payroll in

excess of

one year,

____________________

4.

The

portion of
testimony.

plaintiffs did
the trial

not

order the

that included

That omission

transcript of

their expert

complicates our

explain below.

-77

that

witness's

analysis, as

we

sometimes

without any

that this violated

provides

shall not

4554(c).

had

that

appointment

one

of "[t]ransitory

(1) year

. . .

government

."

21

which

employees

L.P.R.A.

Santiago also testified that many of the plaintiffs

been illegally appointed within

election,

and opined

the Autonomous Municipalities Act,

the

exceed

documented reappointment,

in

violation

personnel

"electoral ban."

of a

two months of a general

prophylactic

decisions

See 21 L.P.R.A.
___

commonly

prohibition

known

4564; 3 L.P.R.A.

as

on

the

1337.

Santiago testified further that, in some cases, the personnel

records had been manipulated in

plaintiffs'

appointments were

order to make it appear that

not within the

electoral ban

period.

Defense counsel then questioned Santiago to

elicit

testimony to the effect that courts have held that transitory

employees

do

contracts.

not have

right

Defense counsel

to

the renewal

accomplished this

of

their

objective by

reading passages from court decisions holding that transitory

employees in

expectation

Puerto Rico

of

continued

would entitle them to

before

have no

renewal of

their

legitimate

contracts that

administrative due process protections

allowing their contracts

Santiago to comment.

reasonable or

This

to expire, and

then asking

was done although the due process

claims had been dismissed.

-88

Santiago

"[o]nce

[a

testified

transitory

that, under

employee's]

court

appointment

decisions,

ends

the

transitory employee . . . doesn't have any . . . other right,

regardless of the fact that his appointment has been extended

for a

period of time

Plaintiffs'

that we may call

counsel objected to this testimony on the ground

that it misstated the law.

Soon

questioning

'excessively long.'"

That objection was overruled.

afterwards,

Santiago

on

defense

the

legal

counsel

status

of

continued

transitory

employees:

Q. I am going to review . . . the case of

Fermin Orta et
al. versus Pedro A.
_________________________________________
Padilla, Municipality of Trujillio Alto,
_________________________________________
et al. .
______
from

. . .

the

I'm going to read to you

translation

of

that

opinion

. . . .

At this

case

point, plaintiffs

concerned

the

due

again objected,

process

rights

noting that

of

the

transitory

employees, and

Amendment

that the

claim.

Again,

plaintiffs' objection.

witness about the

sole claim on

the

trial was

district

Defendants

the First

court

overruled

resumed questioning

law articulated in that case.5

the

Plaintiffs

____________________

5.

Defense

Counsel:

"[I]t

says, the

careful examination of the service and

of

these 23

appellees,

we

find

opinion:

After a

appointment contracts

that

the

only

contract

terminated before the expiration date was that of Juana Cruz.

The other 22 employees were notified that the contracts would
be terminated at the expiration
of

the

prevailing

termination
was valid

date of the same.

principles, we

must

conclude

In

light

that the

of the contract of those 22 transitory employees

at law

because the municipality

provide them with the

did not

have to

regulatory guarantees mentioned above.

-99

objected

again,

basically jury

noting,

"She's testifying

instructions." The

sustained plaintiffs' objection,

counsel to continue

of Puerto

court's decision in

F.2d

125, 129

(1st

in Correa,
______

are

initially

but then permitted

defense

this manner.

to read excerpts from

Rico's decision

what

district court

questioning the witness in

Defense counsel proceeded

Court

[to]

and

the Supreme

from this

Cheveras-Pacheco v. Rivera-Gonzalez, 809

________________
_______________

Cir.

1987)

(holding

that

transitory

employees

do not

employment).

conference

Plaintiffs'

testimony or

have

Plaintiffs'

was

held

counsel

property

interest

counsel again

outside

asked the

the

continued

protested,

presence

judge

in

of

to strike

the

and

jury.

Santiago's

give a curative instruction, stating explicitly

that it is against the law for a

municipal government to let

a transitory employee's contract expire if the primary reason

is

the employee's political affiliation.

The district court

refused, saying plaintiffs had opened the door with their own

____________________

The trial

court erred

in

ruling that

the termination

was

unlawful."
Santiago:
there

were --

appointments
employees
different,

in

"The interesting thing about that case is that

there

were

22

were to

end,

and there

which

and the

--

in

transitory

which

matter of

employees

was another

case

the

discrimination

whose

group of

decision

was

was approved.

But in the case of the transitory ones their appointments had

ended."

-1010

expert

witness and that they could cross-examine Santiago on

the illegality of firing employees for political reasons.6

On

cross-examination,

Santiago

stated

legal opinions she provided on direct examination

the

status

of

transitory

employees

illegalities in plaintiffs' original

and

the case

decision

not be

First

agreed

law

of this

not to renew

primarily based

Amendment,

the

court which

witness was

concerning

the

alleged

When questioned

has

a transitory employees'

on political

the

appointments were based

solely on Commonwealth law, not federal law.

about

that

held that

contract may

affiliation under

evasive.

the

Although she

that transitory employees could not be discharged for

political reasons, she insisted that

this did not apply when

____________________

6.

The

don't

Court:
make

credibility
[defense

"Counsel, the

distinction

and

what

counsel]

is

read

problem with you is

between

the

admissible.
to her

--

the

She --

certain

that you
witness'
Mr.

passages

Pagan

of cases

saying

that -- concerning transitory employees.

I'm certain

you're

going

you

to

read

transitory employee

her a

part

saying

and discharge him for

if

take a

political reasons

it's illegal, and she has to

agree with that.

See?

That's

the way you neutralize that.

I'm not going to teach

you how

argument, plaintiff's

counsel

to practice

law."

(At oral

argued that this last sentence

was particularly prejudicial.

However, as this admonition did

not occur in the presence of

the jury, we examine only

the impact of the district court's

ruling itself.)
The judge continued,
by

your

[expert]

"[T]he Orta case was

____

witness, and

that

opened

brought [in]
the door

for

[defense counsel] to bring [in] the Orta case. . . . Once you

____
open

the door then you can't complain. . . . I will instruct

the jury on

the law

at the

proper time, and

they have

to

follow the law as I tell them, not as what counsel tells them
the law is."

-1111

contract expired because,

she said, such

an employee was

not discharged.

Closing Arguments
_________________

In

that the

closing arguments,

plaintiffs' counsel

witnesses' testimony, principally

argued

the plaintiffs',

established that the incoming NPP administration's motive for

refusing

to renew

plaintiffs'

contracts

was reprisal

for

their

support of

the previous

strongly contested

that Soto never

PDP mayor.

the plaintiffs'

Defense counsel

credibility, and

argued

considered plaintiffs' political affiliation

in his decision not to renew plaintiffs' contracts.

Defense counsel also

testimony,

arguing that

made reference to

the employees

were

transitory and

that their appointments had been in violation of

municipal law.

would have

their

Defense counsel also argued

been in violation of

appointments.

Defense

Puerto Rico

that the Mayor

that law if he

counsel

Santiago's

made

had renewed

reference

to

Santiago's

testimony that transitory employees do not have a

reasonable

expectation of

contracts

expire,

arguing

retaining their jobs

that

plaintiffs'

after their

expert

had

distorted the law

asked

rhetorically, "[A]fter

what are

their [sic]
___

Your Honor is

Defense

in suggesting otherwise.

the appointment

rights of those

going to tell you, see,

counsel

noted

that,

-1212

unlike

Defense counsel

expired . . .

employees?

And that

in the instructions."

plaintiffs'

expert

witness,

"She

plaintiffs]

never

were

. . .

dismissed

discriminatory reasons.

counsel did not

tell

[sic]
___

or

us

not

whether

for

That is for you to decide."

argue that the reasons

[the

political

Defense

for the non-renewals

were that plaintiffs' appointments were irregular.

Instructions
____________

The judge instructed the jury that its duty was "to

follow the law as I shall state it to you" and that it should

not "base

[its] verdict upon any view

that given in

of the law other than

the instructions of the Court."

The court did

not otherwise specifically instruct the jury to disregard the

expert witnesses' opinions concerning the applicable law, but

rather

said expert

testimony

should

be

treated

just

as

testimony from any other witness.

Significantly,

jury

that

any

however, the

irregularities in

the

judge instructed

appointments

the

of the

plaintiffs could not be used as a pretext for violating their

First Amendment rights:

Now, conduct purportedly

consonance

with

the

engaged in

Puerto

Rico

personnel's law and regulation [sic] does

___
not control a
of the

claim alleging a violation

employees' First

Amendment right

of political affiliation.
A new administration

cannot use the

doctrine of compliance with

state law or

nullity under state

a cover

law as

discharges, transfers

for

and discrimination

based solely on political affiliation.

Similarly,
cannot use the
hired

during

new

administration

fact that plaintiffs were

the

electoral prohibition

13

period

or

-13-

"veda"
____

as

political discrimination.

pretext
In

for

the final

analysis, the question of motivation is a

question of fact.

The court also instructed:

If

you

find

that

political affiliation was

factor

for

the

plaintiffs'
the motivating

non-renewal

appointments, then you

of

may find for

their
the

plaintiffs.

The court also gave this instruction:

However,

if

you

find

that

plaintiffs' appointments were not renewed

because they

had been

appointed by

the

former administration in violation of the

personnel

and

because

of

affiliation,

electoral

laws

and

plaintiffs'
then you

not

political

may find

for the

defendants.

The

judge

further

instructed

employees

do not have tenure in

may

be

not

Finally,

allowed

in response to

to

expire

that,

although

transitory

their jobs, their contracts

for

a request from

political

reasons.7

plaintiffs' counsel

____________________

7.

The

were
Puerto

Court: "Transitory -- the plaintiffs

transitory employees of
Rico

law

permits

employees appointed for

in this action

the Municipality of Canovanas.

the

employment

a fixed term.

The

of

transitory

duration of this

designation

shall correspond

to the

period

for which

the

position was created.

"The

law

provides

appointment expires,

that

once

defendant may terminate

employee . . . for any reason

on political affiliation.

transitory

the transitory

except if that reason is based

Defendant . . .

asserts that the

reason for not renewing plaintiffs' appointments or contracts

was that plaintiffs' contracts had expired and that they were
not

renewed

for

valid

reasons

wholly

independent

of

plaintiffs' political affiliation.

"Plaintiffs
transitory

employees

political affiliation.

claims
were

[sic] that
___
not

renewed

their
because

So that is the issue."

-1414

position as
of

their

for a

curative instruction,

jury was

to consider

the judge

only evidence

instructed that

that they

the

believed was

known to the decisionmakers at the time plaintiffs' contracts

were not renewed.8

Verdict
_______

The

verdict

form

plaintiffs, "Do you find by

that the motivating

asked,

as

to

each

a preponderance of the

factor for not renewing

of [plaintiff] was [his or her]

of

the

evidence

the appointment

political affiliation?"

The

jury answered no in each case.

III.
III

We review the district court's decision to admit or

exclude

evidence for

abuse

of

discretion.

Electric Co. v. Joiner, 1997 WL 764563, at

____________
______

See
___

General
_______

*3 (U.S. Dec. 15,

1997); Knowlton v. Deseret Med. Inc., 930 F.2d 116, 124 (1st
________
__________________

Cir. 1991).

Legal Principles
________________

Because

the

long-established legal

them.

In

parties exhibit

principles in

Elrod v. Burns,
_____
_____

427 U.S.

some

this

confusion over

area, we

347 (1976),

repeat

a divided

____________________

8.

The

Court:

"In

determining

discriminated or not, you

or

the

decision

not

the

are not to consider any

evidence that you believe was not

[sic]
___

whether

to

renew

defendants
testimony

present at the time of

plaintiffs'

transitory

appointment
was

was taken, for if the irregularity or misconduct

not discovered until

not renewed, the

after the employee's

employer could not

knowledge of it, and he

contract was

have been motivated

by

cannot now claim that the employee's

contract was not renewed for that reason."

-1515

Supreme

Court granted

employees terminated

some

First

Amendment protection

because of their

where political affiliation was not a

to

political affiliation

reasonably appropriate

requirement for the job.

As

Justice Stewart,

See id. at 359 (plurality opinion).

___ ___

concurring,

said, a

"nonpolicymaking,

nonconfidential government employee [cannot] be discharged or

threatened

with

satisfactorily

discharge

performing

political beliefs."

judgment).

Supreme

Id.
___

In Branti
______

from

upon

job

sole

that

v. Finkel, 445
______

he

ground

at 375 (Stewart, J.,

of

is

his

concurring in

U.S. 507

(1980), the

Court reaffirmed Elrod, and explained that the First

_____

Amendment prohibits termination

of their political affiliation

can

the

demonstrate that

requirement

for

office involved."

the

party

of public employees

unless "the hiring

affiliation

is an

effective performance

Branti, 445 U.S. at 518.9

of

because

authority

appropriate

the

public

______

This court has held that the

Elrod-Branti doctrine
_____ ______

applies to a local government's decision whether to renew the

contract of a

transitory employee.

Rivera-Gonzalez,
_______________

809

F.2d

125

See
___

(1st

Cheveras-Pacheco v.
________________

Cir.

1987).

municipality may not allow transitory employees' contracts to

expire

if the

political

primary motive

affiliation.

is to

See id.
___ ___

punish them

at 127-29.

for their

This

is true

____________________

9.

Defendants have

affiliation was

never

suggested

an appropriate

political

requirement for

jobs that were held by the plaintiffs.

-1616

that

any of

party
the

regardless

of whether the

employees have been

renewed on a

regular basis prior to their dismissal or, as is true of some

of plaintiffs here, have served

only one term.

v. Aponte-Roque,
____________

951 (1st Cir. 1989).

the

fact

reasonable

that

864 F.2d 947,

transitory

employee

expectation of renewal

does

in his or

that would require due process protections does

See Figueroa
___ ________

not

Thus,

have

her employment

not defeat a

First Amendment claim.

In Rutan v. Republican Party of Ill., 497

_____
_________________________

(1990),

the

prohibition

applied

personnel

not

Supreme

political

only

to discharges,

decisions such

decision

held

against

public employee.

the

Court

not

that

the

affiliation

but

as whether

to renew

to significant

to hire

transitory

considered a hiring decision rather than a

Elrod-Branti
_____ ______

discrimination

also

See Rutan, 487 U.S. at 79.

___ _____

U.S. 62

or promote

Hence, even if

appointment10 is

discharge,

reinforces our rule announced in Cheveras-Pacheco.

________________

Rutan
_____

____________________

10.
based

As a practical
system

for

matter, given the Commonwealth's merithiring

and

discharging

civil

service

employees, the risk is greater that transitory employees, who

may be more

easily hired and fired, may

of unlawful patronage practices.

has

been

said

discrimination
employees

is

that

or [those]

Sup.

Ct.

March

directed

with scarce

Departamento de Educacion,
_________________________
(P.R.

See 21 L.P.R.A.
___

"invidious

mainly

19,

suffer from the use

political
against

resources."

-1717

public

Casiano
_______

v.

at p. 718

(Fuster-Berlingeri,

dissenting from denial of certiorari).

It

[party]

humble

97 J.T.S. Case No. 33,

1997)

4554.

J.,

And

the

Elrod-Branti-Rutan
_____ ______ _____

reinforced recently by the Supreme Court.

Comm'rs v.
_______

Umbehr, 116 S.
______

principle

has

been

In Board of County
_______________

Ct. 2342 (1996) and

O'Hare Truck
____________

Serv., Inc. v. City of Northlake, 116 S. Ct. 2353 (1996), the

___________
_________________

Supreme

Court

protection

to

held

that

independent

the

contractors

afforded

government employees.

2345-46

(termination

of

First

Amendment

similar

See Umbehr,
___ ______

contract

in

contractor's criticism of county government);

Ct. at 2355-56

provides

to

116 S.

reprisal

those

Ct. at

for

O'Hare, 116 S.
______

(removal of an independent contractor

from a

list of towing

services employed by the

city in retaliation

for supporting opposing political party).

Expert Testimony on the Law

___________________________

Aspects of Santiago's testimony are very troubling.

Certain parts

of her

testimony --

for example,

actual personnel practices, the various

employees and

objection), and

appointments were

To

exacerbate

described

as

But Santiago

holdings of various opinions of the

Supreme Court of Puerto Rico

(over

categories of public

the like -- are unobjectionable.

also testified as to the

concerning

and by reference, of this court

to the

in violation

matters,

her

misleading

at

legal

conclusion that

of law

testimony

best

as

these

(without objection).

may

to

be

the

charitably

rights

of

transitory employees as a matter of federal law.

-1818

It

is black-letter

law

that

"[i]t

is

not

for

witnesses to instruct the jury as to applicable principles of

law, but for the judge."

United States v. Newman, 49 F.3d 1,

_____________
______

(1st Cir. 1995) (quoting Marx & Co. v. Diners' Club, Inc.,
__________
__________________

550 F.2d

505, 512 (2d Cir.

1977)).

At least

seven circuit

courts have held

that the Federal Rules of Evidence prohibit

such testimony,

and we now join them as to the general rule.

See Burkhart
___ ________

F.3d

1207, 1212-14

allow an

police

v. Washington Metro. Area Transit Auth.,

______________________________________

(D.C. Cir.

expert

in police

officers'

efforts

practices

in

plaintiff

were

statutes);

Snap-Drape, Inc.
________________

197-98

(5th

taxpayer's

Cir.

enough

1996)

expert reports

1997)

to

(reversible error

to opine

communicating

satisfy

court

as containing

with

federal

v. Commissioner,
____________

(trial

on

98

properly

112

to

whether

deaf

disability

F.3d 194,

excluded

nothing more

than

legal

of

certain

dividends); Berry v. City of Detroit, 25 F.3d 1342,

_____
________________

1353-54

(6th

arguments

concerning

Cir. 1994)

the

tax treatment

(finding inadmissible

expert in police

the

practices on the meaning of

comments of

an

the legal term

"deliberate indifference" in a civil rights case); Aguilar v.

_______

International Longshoreman's Union, Local #10, 966 F.2d 443,

______________________________________________

447

(9th

Cir.

1992) (testimony

workers reasonably

promises

addressed

determination" that

and

of

foreseeably

"matters

of

purported

relied

law

for

expert that

on

defendants'

the

were "inappropriate subjects

-1919

court's

for expert

testimony");

(en banc)

Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988)

______
______

(reversible error to

allow an expert

was an attorney to give his opinions on

make consent to a search

& Co.,
______

807

inadmissible

under

F.2d

359,

proffered

witness who

what was required to

effective); Adalman v. Baker, Watts

_______
____________

366

(4th

1986)

(finding

concerning

whether,

of a particular

fact was

expert opinion

securities laws, disclosure

Cir.

required in

Co.
___

the course of negotiating a transaction); Marx &

______

v. Diners' Club, Inc.,

____________________

550 F.2d

505

(2d Cir.

1977)

(securities lawyer, called as an expert, could not testify to

the legal

obligations created under

the general

rule is not

a contract).

to decide the far

To state

more complicated

and measured question of when there is a transgression of the

rule.

We outline some

of the

considerations and

that the rule has been transgressed here.

cases

the defining of

the contours

conclude

We leave to future

of application

of this

rule.

In

our legal

instructions to

resolution

the jury

of the

system,

on the

dispute before

purely legal

law to

them

questions and

be applied

to the

is exclusively

the

domain of

purely

the judge.

legal issues

Circuit has

Accordingly, expert

is rarely

noted, "The

that the 'expert'

testimony on such

admissible.

danger is that

the jury

in the particular branch of

-2020

As the

Second

may think

the law knows

more than the judge

-- surely an impermissible inference in

our system of law."

Marx & Co., 550 F.2d at 512.

__________

The one well-recognized exception

of

is for questions

foreign law, where the judge may be aided by the expert's

assistance.

See Adalman, 807 F.2d

___ _______

F.2d at 510;

1 McCormick on Evidence
______________________

Strong,

ed., 4th

(Chadbourne rev.

ed. 1992);

1978).

at 366; Marx & Co., 550

___________

12,

at 50 (John

7 Wigmore on Evidence
____________________

Even in the

case of

W.

1953

foreign law,

under modern practice the testimony is generally given to the

judge, outside of the presence of

the jury, and is meant

to

assist the judge in determining the appropriate instructions.

See Adalman, 807 F.2d

___ _______

at 366; 9

Wigmore on Evidence
___________________

2558

(Chadbourne rev. 1978).

Here,

offered to assist the judge,

the testimony was plainly not

who has presided over many such

political discharge cases, and was presented to the jury.

Because

questions of law,

and so

does not

Evid.

702, which

technical

trier of

fact in

or

the

jury

does

not

decide

such testimony is not helpful

fall within

the literal terms

allows expert testimony

other

issue . . . ."

will

the evidence or to

As the D.C. Circuit

testimony that consists of legal

pure

to the jury

of Fed.

R.

"[i]f scientific,

specialized knowledge

fact to understand

such

assist the

determine a

noted, "Expert

conclusions cannot properly

assist the trier of fact in either respect . . . ." Burkhart,

________

112 F.3d at 1212; see

___

also Aguilar, 966 F.2d at 447

____ _______

(expert

-2121

legal opinion does not assist the factfinder under Rule 702).

This is because the judge's expert knowledge of the law makes

any

such

prejudicial.

assistance

at

best

cumulative,

and

at

worst

See Burkhart, 112 F.3d at 1213 ("Each courtroom

___ ________

comes equipped with a 'legal

expert,' called a judge, and it

is his

or her province

relevant legal

standards."); 7

(Chadbourne rev.

the

alone to

1978) ("It is

instruct the

jury on

Wigmore on Evidence
____________________

not the common

the

1952

knowledge of

jury which renders the witness' opinion unnecessary, but

the special legal knowledge of the judge.")

Similarly, Fed. R. Evid. 704(a), which removes

common-law

bar

on

"otherwise

"embraces an

ultimate issue

fact," does

not vitiate the

questions of

law.

witness to inform

The

admissible"

to be decided

testimony

by the

rule against expert

common law did

the jury of his or

the

that

trier of

opinion on

not allow an

expert

her factual conclusion

concerning the "ultimate issue" in the case, because this was

thought to invade the province of the jury.

The abolition in

Rule 704(a) of

witness to

offer his or

aid the jury,

it.

this "ultimate issue" rule allows

the expert

her factual conclusion in

which properly can choose to

accept or reject

However, questions of law are not "to be decided

trier of fact";

rather it is for the

order to

by the

judge, not the lawyers

or the witnesses, to inform the jury of the law applicable in

-2222

the case and

this court

to decide any purely legal

has cautioned that

'ultimate issue' opinions

issue.11

Recently,

the abolition of the

. . . is not

"bar on

a carte blanche

for

experts." Dincov. Dylex,Ltd.,111 F.3d964,973 (1stCir.1997).12

_____
__________

While

the testimony

by

Santiago described

above

clearly transgressed the general rule, we acknowledge that it

is

often

difficult

questions of

to

draw

law, what are

mixed questions.

the

line

between

questions of fact, and

what

are

what are

See, e.g., In re Air Disaster at Lockerbie,

_________ ________________________________

Scotland on December 21, 1998, 37 F.3d 804,

______________________________

826-27 (2d Cir.

1994) (regarding

in "fraud"

used

expert's testimony that

and "deceit"

in layman's

defendants engaged

admissible because

sense, while

finding

the terms

were

expert's conclusion

____________________

11.

For similar

rule

has

reasons, the question

been clearly

established,

qualified immunity defense to a

decided by the

of whether

in

the

found

court, not the jury.

reversible

1995).

known to the

witness to

reasonableness of an

v. City of Plymouth,
_________________
The jury's role

Thus, the Eighth

allowing

conduct in light of prevailing "Fourth

Peterson
________

See St. Hilaire v. City

___ ___________
____

error in

espouse views concerning the

context of

1983 action, is a question

of Laconia, 71 F.3d 20, 24 (1st Cir. 1995).

__________
Circuit

a legal

Amendment standards."

60 F.3d

was only to

officer's

469, 475

(8th Cir.

decide what facts were

officer at the time of the arrest, not whether,

in light of those facts, the officer's conduct was reasonable

under the applicable

legal standard and therefore

by qualified immunity.

12.

Santiago

was

appointments were

protected

See id.
___ ___

competent

to

irregular in the

testify

that

plaintiffs'

sense that they

did not

conform

to

normal

personnel

practice,

but

her

legal

conclusion that the appointments were in violation of the law

was improper.
conclusions,
plaintiffs

Because
our

cannot

there

review

is

sustain

was
for

in

no

objection

plain

error,

light

of

our

to
a

such
burden

harmlessness

analysis.

-2323

that

defendants

Specht,
______

853

F.2d

violated

805,

FAA

regulations

809 (discussing

the

inadmissible);

distinction).

Indeed, the definition of what is law and what is application

or

practice may

particularly so

and formally

be difficult

to

ascertain.

when the issues involve not

promulgated regulations,

handbooks, advisory rulings,

This may

only a statute

but also

guidelines,

interpretive bulletins, general

counsel's letter opinions, informational notices and

accoutrements

there

may

malpractice,

of

be

the modern

particular

where

expert

be

bureaucratic state.

areas

of

testimony

admissible where it would normally

hypothesize instances in rare,

law,

on

such

legal

be excluded.

highly complex and

similar

Further,

as

legal

matters is

We can also

technical

matters where a trial judge, utilizing limited and controlled

mechanisms, and as a matter of trial management, permits some

testimony seemingly at variance with the general rule.13

But

none of

here

those instances

are

routinely

are before us.

before

the

The

federal

issues raised

courts,

are

not

complex, and the use of such testimony was egregious.

Testimony Re After-Acquired Evidence

____________________________________

____________________

13.

Such

an instance

technical experts
scope

are generally

of a patent's

the issue

may be

patent litigation,
allowed to

coverage and give

of infringement.

in which

comment on

the

their conclusions on

See Snellman v. Rioch Co., 862

___ ________
__________

F.2d 283, 287 (Fed. Cir. 1988); Stearns Co. v. United States,
___________
_____________
324 Fed. Cl. 264, 268-69 (1995).

-2424

There

is

second

reason

Santiago's testimony is very troubling.

application

McKennon
________

(1995),

of the after-acquired

the

evidence doctrine.14

115

Court considered whether

wrongdoing, discovered after

of

That has to do with

v. Nashville Banner Publ'g Co.,

_____________________________

the Supreme

admission

the termination of

S. Ct.

In

879

an employee's

employment,

which would have been sufficient to justify the decision, but

which

was not

known

to the

employer at

the

time of

the

decision

and so

foreclosed a

could

not

claim of age

have

motivated

discrimination.

the

decision,

See id.
___ __

at 882.

The Supreme Court held that such evidence was not relevant to
___

the employer's liability for age discrimination, but would be

relevant in determining what remedy was appropriate.

at

885.

If

discharge

the evidence would

at some later date,

have led

See id.
___ ___

to the employee's

that would affect the measure

____________________

14.

A question

may

be

raised

irregularities that Santiago

whether the

evidence

described meets the

of

definition

of after-acquired evidence under McKennon v. Nashville Banner

________
________________
Publ'g Co.,
___________

116 S.

Ct.

879

employee wrongdoing that would

employment.

We do not

this case would in fact

(1995).

McKennon
________

concerned

normally cause termination of

know if the irregularities alleged in

normally lead to termination or non-

renewal of

employment.

considered

the

determining

ignored."
it

was

equitable

that "the

into account,

In

lest

doctrine

of

McKennon
________
unclean

employee's wrongdoing

the employer's

Id. at 360.
___
apparently

addition,

expressly
hands

must

legitimate

in

be taken

concerns

be

Here, as the evidence was presented,

the

former

administration,

not

the

employees, who made the appointments allegedly against normal

procedures.

If

the

difficult to import

employees were

blameless,

it may

wholesale the McKennon doctrine.

________

the desultory treatment

be

Given

of this aspect of the McKennon issue

________

by the parties and our disposition

of the case, we think

wiser to address the issue in some future case.

-2525

it

of

damages

and

the

equitable relief.

appropriateness

See id. at 885-86.

___ ___

of

reinstatement

as

In Umbehr, the Supreme

______

Court adopted the McKennon approach in First Amendment claims

________

brought by public employees or

S. Ct.

at 2352

contractors.

("[I]f [plaintiff]

See Umbehr, 116

___ ______

prevails, evidence

that

would

[defendants] discovered

facts after

termination that

have

termination

anyway . . .

led

to

later

would

be

relevant in assessing what remedy is appropriate.").

Thus,

admissible

here,

such

only as

after-acquired

to remedy,

evidence

and not

is

normally

on liability.

Yet

it was seemingly offered, over objection, as pertinent

to

liability.

concerning

which

the

did not

relevant

Those

portions

of

irregularities in

consist of

to damages,

legal

Santiago's

plaintiffs'

testimony

appointments

conclusions were

but normally,

not to

arguably

liability.

On

appeal, plaintiffs only argue the issue of admissibility, and

the evidence was arguably admissible on damages.15

To

prevail,

discretion

in

discretion

analysis is

plaintiffs

admission of

the

must

show

evidence.

complicated by

the

abuse

of

Any abuse

of

actions of

the

____________________

15.
that

The trial

court erred in

Santiago's testimony

liability.

Although

the risk

was not

jury

determining
the jury

evidence that it did not believe

the decision maker

of prejudice

relevant in

the judge properly instructed

that it should not consider

was before

failing to instruct the

at the time of

was such that

the judge

the decision,
should have

stated

explicitly

irregularities was

that

Santiago's

not to

testimony

be considered in

concerning

any way

on the

question of liability.

-2626

parties

here.

normally

be

While much

inadmissible,

defendants to respond in kind.

who first

introduced the

of

Santiago's

plaintiffs

may

testimony would

have

It was apparently

topic of

invited

plaintiffs

legal conclusions

to be

drawn

from review of plaintiffs' personnel

law about rights of public employees.

files and of the

Plaintiffs argued that

the files showed no disciplinary warnings or other actions by

the employers which

employment,

and

provided cause for termination

their

expert

may

have

of their

engaged

in

inappropriate legal commentary. Defendants apparently did not

object, perhaps because they wanted to respond in kind.

The trial judge evidently felt that this opened the

door to

the defendants'

evidentiary concept

expert.

which requires

unfairness of allowing one

remain

unanswered

"Opening

against

the door"

careful weighing

is an

of the

party's objectionable evidence to

the

danger of

compounding

the

problem with further inadmissible and potentially prejudicial

testimony.

See 1 McCormack on Evidence

57 (John W. Strong,

___

ed.,

4th ed.

_____________________

1992).

The

judge may

well

have felt

that

plaintiffs created the problem about which they now complain.

As plaintiffs did not provide this court with a transcript of

their own expert's testimony, we do not reach the question of

whether

the

judge

abused

his

in

allowing

Santiago's problematic testimony under an "opening

the door"

theory.

-2727

discretion

To overcome the jury

verdict, plaintiffs must show

not only that there were errors under the abuse of discretion

standard,

harmful.

but also

"Only

that the

district

court's errors

if we answer both questions

will [plaintiffs']

argument on

were

in the positive

appeal prevail."

Ahern
_____

v.

Scholz, 85 F.3d 774, 786 (1st Cir. 1996).

______

Harmless Error
______________

In

a civil case,

the party asserting

error bears

the burden of demonstrating that the error was harmful, i.e.,

that it affected

that party's substantial rights.

See Fed.
___

R. Civ. P.

61; Fed. R. Evid.

103; Federico v. Order of St.

________
_____________

Benedict in R.I., 64
_________________

F.3d 1, 3

showing harmful error

in a civil case is

error); Hygh v.
____

(holding

that

(1st Cir. 1995)

admission

prejudicial

on party asserting

Jacobs, 961 F.2d 359, 364-65

______

that objecting party had

of

improper

effect).

"In

legal

(burden of

(2d Cir. 1992)

not met burden of showing

opinion

determining

testimony

whether

an

had

error

affected a party's substantial right[s], the central question

is whether this court can

the

judgment was

Ahern,
_____

85 F.3d at

say with fair assurance . . . that

not substantially

swayed

786 (citations, internal

and original alterations omitted).

by the

error."

quotation marks

Factors

that

the

jury's

considered in

verdict was

determining the

substantially

likelihood

swayed

by the

evidentiary error include both the centrality of the evidence

-2828

and the

prejudicial effect

See id.
___ ___

"We weigh these

of its

inclusion or

exclusion.

factors in the context of the case

as

gleaned from the

record as a whole."

internal quotation marks omitted).

"grave doubt"

the verdict,

verdict.

Ultimately, if we are in

concerning the likely

we treat the

Id. (citation and

___

effect of the

error as if

it had

affected the

See id.
___ ___

Although normally

testimony such as

to legal conclusions is

clearly wrong and such

was proper

at best, to

that the

error on

is limited,

testimony affected

Santiago's as

testimony as

damages, we

the outcome

of the

cannot say

trial, and

therefore, we consider it harmless.16

The

the

district court's

instructions here

reinforce

conclusion that Santiago's testimony was not central nor

did it

actually prejudice

the jury's

decision.

The

judge

properly

instructed

expires, defendant

. . .

for any

political
_________

instructed,

issue

that

may

reason

except
______

not once

terminate

affiliation."
___________

for the

"once

the

(emphasis

decide

appointment

transitory

if that
__ ____

but several

jury to

transitory

reason
______

is based
__ _____

added)

times,

employee

The

that the

was whether

on
__

judge

central

the motive

for

____________________

16.

That plaintiffs

testimony also bears

jury may have had two
may have disregarded
question of motive.
a straightforward

apparently
on the

opened

the

harmless error

door

to

such

analysis.

The

"experts" each opining on the law

both experts as not helpful

and

on the key

In this case, the question of motive was

question of

whom the

Mayor or the plaintiffs.

-2929

jury believed,

the

plaintiffs'

non-renewals

was their

Finally, the verdict form itself

find by

factor

political

posed the question, "Do you

a preponderance of the evidence

for not renewing

affiliation.

that the motivating

the appointment of

[plaintiff] was

[his or her] political affiliation?"

The judge did

municipal

expressly caution the jury

that the

defendants could not use compliance with state law

as

a pretext

for political

discrimination.

court instructed the jury that

facts that were not known

the

time plaintiffs'

deciding

because

whether

renewed,

until

they were not to consider any

contracts were

allowed

administration

of their political

discovered

affiliation.17

to expire

in

let plaintiffs

go

As

the district

the irregularity or misconduct

after

the employer

the

could

knowledge of it, and he

district

to the relevant decision makers at

Soto's

court explained, "if

The

employee's

not

contract

have

been

was not

was

motivated

not

by

cannot now claim that the employee's

contract was not renewed for that reason."

Thus,

testimony, that

we do not find it likely, despite Santiago's

the jury

was confused

about the

rights of

____________________

17.

In

finding

whether the
first

any

error harmless,

admission of the

instance.

Plaintiffs

need not

decide

evidence was erroneous

in the

themselves represented

to the

court that Soto's knowledge of the

factual
received
of

issue

for

the

jury.

we

illegalities was a viable

Plaintiffs

asked for

and

an instruction, which they said "would be curative"

the McKennon problem, that

________

the jury should disregard the

illegality evidence "if they believed that [the illegalities]

were discovered after the fact."

-3030

transitory

the

employees under the First Amendment.

issue in

this

municipality's]

[its]

case

answered that question.

appellees.

of

factual

reason for dismissing

motive political?"

judgment

was "the

the district

Caro,
____

matter of

[the

the plaintiffs.

Was

878 F.2d at

As we harbor no

court

is

As in Caro,
____

2.

The jury

"grave doubt," the

affirmed.
________

Costs

to

-3131