GOMEZ v. TOLEDO

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

CARLOS RIVERA GOMEZ, Petitioner v. ASTOL CALERO TOLEDO, Respondent

No. 79-5601

April 16, 1980

The above-entitled matter came on for oral argument at 1:16 o'clock a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

MICHAEL AVERY, ESQ., Two Park Squzre, Boston, Massachusetts 02116, on behalf of the Petitioner

FEDERICO CEDO ALZAMORA, ESQ., Assistant Solicitor General, Department of Justice, P.O. Box 192, San Juan, Puerto Rico 00902; on behalf of the Respondent

MR. CHIEF JUSTICE BURGER: We will hear arguments next in Gomez v. Toledo.

Mr. Avery, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF MICHAEL AVERY, ESQ., ON BEHALF OF THE PETITIONER

MR. AVERY: Thank you, Mr. Chief Justice, and may it please the Court:

This case comes to this Court following the dismissal of Petitioner's 1983 action in which he alleged that he was discharged from public employment in retaliation for a speech on his part which we submit was clearly protected by the First Amendment and without regard to his due process rights to procedural due process under the Fourteenth Amendment.

QUESTION: Mr. Avery, I wonder if I could ask you a question at the threshold. Has this Court ever decided that Puerto Rico was a State for purposes of 1983?

MR. AVERY: I don't believe that has been decided by this Court, Mr. Justice Brennan, but the First Circuit has decided that on a number of occasions.

QUESTION: But has the issue ever been before this Court?

MR. AVERY: Not to my knowledge.

QUESTION: I take it that it is the kind of issue that we can take cognizance of, isn't it? If it is not, then I gather --

MR. AVERY: It is a basic jurisdictional issue. It is not disputed by any of the parties in the case.

QUESTION: I appreciate that.

MR. AVERY: And I know of no argument that has been presented --

QUESTION: Well, what has been the rationale of the First Circuit, to suggest that it is a State.

QUESTION: As you are aware, this Court has held that the District of Columbia is not a State for purposes of 1983. And at least I take it constitutionally Puerto Rico is a Territory, isn't it?

MR. AVERY: It is not a territory in a strict constitutional sense but it has been treated as such by the First Circuit. It has a sort of unique Commonwealth status arising from the Organic Act earlier in this --

QUESTION: Well, that isn't a constitutional matter though, is it? Congress has created something called a Commonwealth but I suppose for the purposes of the Constitution it is a territorial clause that applies, isn't it?

MR. AVERY: That would be our position with regard to the application of 1983, yes, sir.

QUESTION: What has the First Circuit said is the basis for a conclusion that actions against Puerto Rican officials lie under 1983?

MR. AVERY: As I recall -- and you do catch me somewhat off guard, Mr. Justice Brennan -- the argument that has been made in this case is that the Constitution must have meaning within the Commonwealth of Puerto Rico since it is under our jurisdiction. And that 1983 is the method for enforcing that.

QUESTION: We said that in the Fourth Amendment case, didn't we?

MR. AVERY: That may very well be.

QUESTION: Not that it is a State, but that the Constitution is applicable.

QUESTION: But didn't we also say in the opinion written for the Court by Mr. Justice Brennan covering the District of Columbia that Congress enacted 1983 because it thought that State legislatures would be considerably less receptive to Federal constitutional rights than Congress itself and that since Congress itself legislated for the District of Columbia, the District of Columbia was not a State for purposes of 1983.

MR. AVERY: Well, that rationale would support the application of 1983 to Puerto Rico, because Congress does not legislate for Puerto Rico within -- in the sense that it does for the District of Columbia.

QUESTION: Well, it certainly passed the Organic Act.

MR. AVERY: Yes, but the laws that govern the people of Puerto Rico on a day to day basis are passed by the Puerto Rifo legislature in Puerto Rico. And in that sense functionally it is in the same position to the Federal Constitution as a State or Territory.

QUESTION: Well, would you say then that the Home Rule Act enacted by Congress for the District of Columbia several years ago made our earlier decision saving 1983 was not applicable to the District out of date because now the City Council of the District of Columbia is the one that enacts the laws which govern the citizens of the District of Columbia?

MR. AVERY: Well, that might be a possible argument, Mr. Justice Rehnquist. To be frank with you, I am a little out of my depth with regard to the Home Rule Act in the District of Columbia and I don't know that I can answer that question adequately.

But I would say with regard to Puerto Rico that the same concerns that prompted the 1871 Civil Rights Act are in effect there, namely is the Federal Constitution going to be given the same even-handed application by local officials in that Territory as it is in all the other States and Territories. And I think that that justifies the application of 1983 to Puerto Rico.

QUESTION: Because there is a difference in the status of the Virgin Islands and Puerto Rico, they aren't going to stand for it, are they?

MR. AVERY: Well, I accept your statement that they are not, Mr. Justice Marshall. I think that Puerto Rico does have the unique relationship --

QUESTION: That is what I thought.

MR. AVERY: -- does have a unique relationship with the United States. And the District Court in Puerto Rico and the First Circuit have certainly entertained these suits with regard to Puerto Rico for a number of years now.

QUESTION: Have there been any rulings with respect to 1981 or 1982 about Puerto Rico?

MR. AVERY: I know of no 1981 and 1982 cases. There may very well be such cases but I personally don't know of such cases, Mr. Justice White.

The complaint in this case was dismissed by the District Court purely for the reason that the plaintiff had failed to allege bad faith in his complaint despite the fact that he had pleaded constitutional violations and he had pleaded that these violations had transpired under color of law. And our position is that this question presents two analytically different issues for resolution by this Court. One, who has the burden of pleading matters relative to the qualified immunity issue in a 1983 case; and two, what are the elements of a cause of action under Section 1983?

In our view, the fatal flaw of the First Circuit decision is that it merged these two questions and decided both of them incorrectly by requiring the plaintiff to allege bad faith as an element of his cause of action under 1983.

If I might turn to the qualified immunity issues first, this Court has decided we would submit in Scheur v. Rhodes that in a series of cases that have been decided by the Court that the qualified immunity matters are matters of defense. Although the Court has never referenced it specifically to Rule 8(c), we would submit that the matters of affirmative defense under Rule 8(c) have been continuously referred to in that way by the Court.

QUESTION: Do you think all matters of immunity are?

MR. AVERY: I think --

QUESTION: What about absolute immunity for -- legislative immunity, for example?

MR. AVERY: This Court has treated absolute immunity as a defense. In Doe v. McMillan, for example, I think the Court clearly put a burden on the defendant in that case to justify the conclusion that if --

QUESTION: Just to plead the immunity, to establish that what was going on there was legislative.

MR. AVERY: Yes, that is correct. The subordinate facts, if you will, that would have justified absolute immunity in that case. And that is part of our argument, that if the defendant has to do even for absolute immunity it would seem to follow that for qualified immunity the defendant certainly has to do it.

QUESTION: What about Eastland v. Servicemen's Fund decided three or four years ago, wasn't there some statement in there that a mere letter from the defendant stating that he was a member of Congress was all that was required, no pleading at all?

MR. AVERY: I don't know, Mr. Justice Rehnquist, but in other absolute immunity cases rather more than that has been required of the defendants. But even if there are cases, for example a judicial immunity case where the mere status of the person is a fairly complete answer to the immunity issue --

QUESTION: You still have to say, I object.

MR. AVERY: Yes. And in fact there are cases where even the fact that the person is a judge won't insulate him from liability under 1983 if he acts wholly beyond his judicial authority.

QUESTION: What if the plaintiff alleges in his complaint that the defendant is a judge and that it is clear from the allegations in the complaint that the judge was acting in his judicial capacity?

MR. AVERY: I think the judge would be entitled to win on a motion to dismiss in that case.

QUESTION: For failure to take a cause of action?

MR. AVERY: No, because the immunity would be clear on the fact of the pleadings and the complaint in that sense would not state a claim for relief.

QUESTION: Well, Tenney v. Brandhove this Court reinstated a District Court dismissal of an action where the Court of Appeals had ruled that they had stated a cause of action. And this Court reversed and reinstated the dismissal. And you would think it was because of his failure to state a cause of action.

MR. AVERY: Well, I think the plaintiff states a cause of action when he alleges his constitutional rights have been violated and that they have been violated under color of law. And our submission is that the immunity matters, whether absolute or qualified, are really matters in confession and avoidance.

Now, the absolute immunity cases are easy because so often it is obvious from the face of the complaint what the issue is.

The qualified immunity matters, however, fall into a completely different --

QUESTION: Well, you don't need to argue about absolute immunity.

MR. AVERY: No, I do not. The qualified immunity matters are rather different and I think this Court did decide in Scheuer v. Rhodes that there is no automatic assumption of qualified immunity even with regard to the Governor of a State in that case. That case came here following the granting of a motion to dismiss by the District Court and this Court held in a unanimous opinion written by the Chief Justice that that was erroneous for the District Court to assume that good faith attached automatically and that there was no basis in in the record, factual or otherwise, to support the automatic assumption of good faith. And the Court specifically said that the complaining parties in that case were entitled to be heard more fully than was possible --

QUESTION: That doesn't necessarily follow because you have to plead it that you have to prove it?

MR. AVERY: That doesn't necessarily follow under the Federal --

QUESTION: So what case do you have that the defendant not only must plead but prove it?

MR. AVERY: This Court has not addressed the question of who has the ultimate burden of proof with regard to the qualified immunity matters. That issue has been widely litigated in the lower Federal courts and nearly all of the circuits outside the First Circuit, all ten circuits outside the First Circuit have ruled either on the pleading or proof matter and most of those circuits have decided that the defendant has the burden not only of pleading it but of proving it as well.

QUESTION: Some decided the other way?

MR. AVERY: There is only one case I know of outside the First Circuit and that is Cruz v. Beto in the Fifth Circuit where they held that the director of a State-wide prison system did not have that burden and in that case the plaintiff had the burden.

QUESTION: He had to plead it?

MR. AVERY: He had to raise it --

QUESTION: He had to pose a defense but it is like an insanity defense in some jurisdictions. Then the Government must prove insanity.

MR. AVERY: I don't know if that is an exact analogy, because the Fifth Circuit decision isn't so clear, actually, about the relationship between the pleading requirement and the proof requirement.

Also there seems to be some disagreement among the various panels within the Fifth Circuit about who has the burden.

The other circuits have pretty uniformly held that the defendant has the burden and the reason for that, I would submit, is because of very sound promising consideration, namely these matters, matters that go to the qualified immunity issue in many cases are singularly within the knowledge of the defendant. There were so many different types of sources which the defendant might turn to to justify a qualified immunity defense. The defense I think both as enunciated by this Court and as interpreted by the lower Federal courts is very broad. Defendants might look to administrative practice. They might look to decided cases. They might look to the advice of counsel. They might look to a manual that is produced by the police department or the government that they work for. Plaintiff simply has no way of knowing at the time he grants the complaint what the defendant's explanation for unconstitutional conduct might be and therefore we suggest that is only the defendant who can consistent with the requirements of Rule 11 come forward and plead the matter. That is true not only because the defendant is the only one who would know what the possible sources of his good faith might be but the defendant is the only one who would know the circumstances under which he claims to have developed some good faith belief in the legality of his action. For example, suppose the defendant relies upon advice of counsel and ultimately the defendant's position at trial is going to be, my lawyer told me that it was legal for me to engage in this act, which it has turned out violates the plaintiff's constitutional right.

It is not only the question of what the lawyer told him but what that defendant said to the lawyer. What was the reason why he sought advice from that lawyer, what information did he give to the lawyer before he asked the lawyer for an opinion. What question did he finally put to the lawyer in response to which the lawyer gave him some advice.

Those are matters totally within the control of the defendant's knowledge and the plaintiff simply has no information.

QUESTION: To you think the burden matter is even here?

MR. AVERY: Do you think the --

QUESTION: Do you think the burden issue is here?

MR. AVERY: Yes, I do think it is here, because it seems to me what the District Court and what the First Circuit decided was that --

QUESTION: Well, wasn't the complaint dismissed?

MR. AVERY: The complaint was dismissed, yes.

QUESTION: On what -- motion?

MR. AVERY: It was dismissed on motion but the District Court really sua sponte raised this issue.

QUESTION: Well, I know but it wasn't even pleaded. There would have still been a dismissal just for failure to plead.

MR. AVERY: The dismissal was for failure to plead.

QUESTION: It couldn't have been for failure to prove.

MR. AVERY: That is correct.

QUESTION: So and neither could the First Circuit. So why is the burden issue here?

MR. AVERY: As to burden of proof? Well, that issue is not here.

I was talking about that, Mr. Justice White, because you asked me a question about it.

QUESTION: Well, you certainly would seem to argue and assert that is your position, anyway.

MR. AVERY: That would be my position.

QUESTION: It is your position in your brief, isn't it?

MR. AVERY: Yes, it is our position in our brief but we do state in the brief that we think it would be a mistake for the Court in this case to announce a flat rule covering all 1983 cases as to the allocation of that burden. Just like Scheuer v. Rhodes, the Court announced it would be imprudent to try to cover the whole waterfront with regard to the qualified immunity --

QUESTION: Why get to the burden at all?

MR. AVERY: The burden of proof?

QUESTION: Yes.

MR. AVERY: I don't think the Court does need to get to the burden of proof.

QUESTION: Well, then you are using the term "burden" in two different senses, at least for my ear.

MR. AVERY: Let me apologize for my lack of clarity but --

QUESTION: Pleading is the only thing that is here.

MR. AVERY: This is a case about the burden of pleading. However --

QUESTION: Isn't it also true that if the Court should ultimately decide that the burden of proof was on the defendant, then necessarily the burden of pleading would fall a fortiori.

MR. AVERY: That is correct.

QUESTION: So to the extent that you make an argument favoring placing the burden of proof there you are supporting an argument in favor of placing the burden of pleading there as well.

MR. AVERY: That is correct. I only meant to say that I don't need to go that far in order to win this case.

QUESTION: But the converse of that is not true, necessarily?

MR. AVERY: That is correct also.

This is a case though which is somewhat confusing in terms of what the First Circuit decided, because the First Circuit appears to say not only in this case but in its other decisions that the reason they put that burden on the plaintiff is as though they consider pleading bad faith an element of the plaintiff's cause of action. And that is the second half of the analysis that the First Circuit gives us, namely that in order to plead successfully a 1983 case the plaintiff has to allege that the defendant acted in bad faith. That is a ruling which may very well, although I just saw it a few moments ago, be disposed of by the Court's decision today in the Owen case because I take it that one of the things that we could say on the basis of that is that bad faith in the sense of negating qualified immunity can't be an element of the very cause of action if that cause of action can be asserted against the municipality without making the claim of negating qualified immunity.

It would also, the First Circuit decision viewed that way, it would seem to me require this Court really to overrule or at least to do substantial damage to Monroe v. Pape, and Carey v. Piphus, cases in which this Court has in effect said there were two requirements for making out a cause of action under 1983 -- (1) deprivation of a constitutional right and (2) a deprivation which takes place under color of law.

To add a third requirement, namely that the defendant acted with some malice or recklessness or bad faith in the sense in which the First Circuit uses those terms would be to add a new requirement to --

QUESTION: Unless some element happens to be independently an element of a constitutional violation?

MR. AVERY: That is correct. There are constitutional violations that require some mental element.

QUESTION: In New York Times v. Sullivan, as I understand it, the requirement of intent to defame or actual malice is a burden on the plaintiff as a matter of constitutional law.

MR. AVERY: In pleading a defamation case such as The New York Times v. Sullivan, that is correct. I think an example of that in this case is the First Amendment violation. Under the Mt. Healthy case, as I understand it, the plaintiff has to allege first that he was engaged in protected activity and it was then in response to his being engaged in protected activity and it was then in response to his being engaged in protective activity that the defendant discharged him from employment. In other words, the plaintiff does have to allege that a substantial factor or a motivating factor in the defendant's action in discharging the plaintiff was the plaintiff's -- the content of the plaintiff's speech.

QUESTION: And in a racial discrimination case.

MR. AVERY: And in a Fourteenth Amendment racial discrimination case invidious discrimination is required.

QUESTION: Intentionally.

MR. AVERY: And intent, And in an Eighth Amendment case some deliberate indifference is required.

But those are very specific requirements which the Court has developed as a result of the substantive jurisprudence of each of those constitutional violations. I think in the First Amendment case, for example, we know exactly what it is that the plaintiff has to allege as a result of the Mt. Healthy decision. Just to call that bad faith or malice is to muddy the waters, we would submit, because those terms are much more general, indeed not nearly so meaningful as the specific content of those constitutional rights which are developed with regard to the substantive law in those areas.

In this case, then, our submission is that the plaintiff had only a responsibility to allege the substantive elements of the constitutional violations he was pleading, namely with regard to the First Amendment violation that he had been engaged in speech activities which are arguably protected by the First Amendment and (2) that he was fired as a result of the fact that he engaged in that speech. And with regard to the procedural due process question that the plaintiff had employment in which he had a property right and (2) that he was discharged without a hearing.

QUESTION: And you say that is pleading merely the ultimate facts?

MR. AVERY: Well, I say that those are the elements of those two constitutional violations, that the -- with regard to the First Amendment issue I think that he has to fairly put the defendant on notice that he is claiming that he was fired because of the content of his speech and I think with regard to the procedural due process issue he does have to plead that he lost his job and that he lost it without a hearing. I don't think he has to do any more than that under the notice pleading rules. And I think the plaintiff did that in this case.

QUESTION: Mr. Avery, I think before you sit down, perhaps I should have looked at 1983 before I asked you the question I did whether Puerto Rico is a State, the statute reads:

"Every person under color of any statute, ordinance, regulation, custom or usage of any State or Territory" --

So I gather it is under 1983, because Puerto Rico is a Territory.

MR. AVERY: Oh yes, if Puerto Rico is considered a Territory it --

QUESTION: Well, all right, then.

QUESTION: It is just a question of whether or not Puerto Rico is a Territory.

MR. AVERY: I thought that was what Mr. Justice Brennan's question was addressed to.

QUESTION: All right.

QUESTION: It is a Commonwealth, it is a Commonwealth by congressional legislation.

MR. AVERY: Correct; as I say, and I am repeating myself, it has been treated as a Territory for the purposes --

QUESTION: Incidentally, it has been a Commonwealth for not that many years, has it?

MR. AVERY: The Commonwealth status, if I am not wrong, is in the late 'Fifties or early 'Sixties.

QUESTION: 1983 would apply if it were a Territory or if it were a State?

MR. AVERY: Yes.

QUESTION: And the Court of Appeals of the First Circuit says, well, whatever it is, it is somewhere between the two.

MR. AVERY: Yes, that is correct. And they treat it as a Territory.

QUESTION: What was it before it was a Commonwealth?

MR. AVERY: It was, I believe, a Territory.

QUESTION: A Territory?

MR. AVERY: Yes.

I would like to reserve the rest of my time for rebuttal if I may.

MR. CHIEF JUSTICE BURGER: Very well.

Mr. Cedo.

ORAL ARGUMENT OF FEDERICO CEDO ALZAMORA, ON BEHALF OF THE RESPONDENT

MR. CEDO: Mr. Chief Justice, and may it please the Court:

It has been brought before this most honorable Court the fact that Petitioner was discharged from public office because he chose to exercise his freedom of speech.

QUESTION: Are you familiar with any cases that have addressed directly the question whether Puerto Rico comes within 1983, and why?

MR. CEDO: No, sir.

Before delving any further into the issues of the case I would like to state some of the facts.

Petitioner had been -- as it is reflected in Exhibit 1 of his complaint -- had been engaged for about two years in a constant vortex of several problems concerning his fellow officers. He accused some of them of fabricating cases, using false witness. He suffered emotional problems himself which affected him in his work professionally. He was not discharged then because of that.

He pressed charge against his fellow officers, he interfered with the Bureau of Inspection Services investigation. He charged that some of his fellow officers had gained entry into the police through illegal means.

Then some of his fellow officers in turn accused him that he was maligning them -- many of them, about four of them. They questioned his reputation, they accused him of tampering with a witness and he was not discharged then. He was accused of passing information to the defense of a notorious criminal, he was accused of supplying information to out-of-town killers in order that they could prepare their defense. He was accused of creating problems, internal problems in the police as to help underworld figures. He was accused of having suspicious person in his own house. He was not discharged then.

The fact is that an impartial investigation was carried on by the police itself and he was cleared. He was transferred because he could not properly work in this unwholesome environment, surrounded by so many people who he had accused and who had accused him in turn, he was transferred to the police headquarters and to the police academy.

QUESTION: How does this bear on the holding of the First Circuit with reference to the pleading question here?

MR. CEDO: Well, it has been said here that his right of freedom of speech had been violated. That was not pleaded directly and so he did not state a violation to the First Amendment at a District Court. This was not before the District Court and was not decided by the Court of Appeals. So it should not be before this Court. And that wasn't an element of pleading. He was not discharged either when he testified in the criminal case against his own supervisor, underlining his authority or when criminal charges were brought against him for wiretapping of his fellow officers in conversations concerning official matters. He was discharged two months afterwards, after three years of all this when it came apparent to the Superintendent of Police that his conduct was injurious and harming to the Police Department.

So I say that in justice it couldn't be said that he was arbitrarily discharged as he actually pleaded in his complaint.

The complaint was dismissed mainly because of a failure to state a cause of action. He did not plead any bad faith on the part of the respondent. And I deem that the logic would justify on the plaintiff the absence of such bad faith on the defendant is that otherwise defendant would not have been liable for damages.

So we have the concurrence of that very bad faith, linked it with valid cause of action. It seems to me that discharge from employment does not entitle anyone to recover from damages under civil rights action. Bad faith, malice or recklessness, such circumstances actually constitute elements of any valid claim for relief, simply because in their absence the pleader would not be entitled at all to the relief requested.

I would like to bring your attention to the opinion delivered this very morning by Mr. Justice Brennan in the case of Owen v. The City of Independence where on page 2 it says:

"Where an immunity was well established at common law and where its rationale was compatible with the purpose of 1983 this has been construed to incorporate that immunity."

The same page establishes that police officers actually enjoy that immunity.

The purpose of pleading is to inform about the essence of the claim and the ground on which it rests, to indicate the basis upon which relief is sought.

And so no one should be required to put forward a defense against minor imputations which have not even been formulated or articulated or to state his position concerning possible or probable issues which have not been raised yet in a case against him.

QUESTION: Are you suggesting absolute immunity?

MR. CEDO: It is a qualified immunity.

QUESTION: Well, how is the party under 1983 to know what immunity there is?

MR. CEDO: Because of the very position.

QUESTION: Well, how would you allege it; you are a lawyer, how would you allege if you want others --

MR. CEDO: I would have claimed that regardless of defendant being a police officer the immunity did not apply to him because he had acted in bad faith.

QUESTION: Well, what other defense would have to take care of in your original pleading? What other defense would you have to negate in your original pleading?

MR. CEDO: I think this is main point on which the defense rests. We don't negate all the other elements of the violation.

QUESTION: Suppose you put in a provision that says a defendant has no valid defense.

Is that enough?

MR. CEDO: I would say that this is a very valid defense.

QUESTION: I said if the moving party says and the defendant herein has no valid defense, would that be enough?

MR. CEDO: No, I would not say so. I would say that that is --

QUESTION: He would have to be very particular, wouldn't be?

MR. CEDO: Yes. I would say that he would have to be very specific --

QUESTION: He would have to be very specific about something he didn't know anything about.

MR. CEDO: Well --

QUESTION: Is he obliged to know the immunity or lack of immunity that the police officer has?

MR. CEDO: I think he should know about it, since he is actually pleading that it was implied in the allegations.

QUESTION: What was implied?

MR. CEDO: Before the Court of Appeals it was argued that though they had not pleaded bad faith in those many words, it was actually implied in the allegations.

QUESTION: Do you mean that the only way a police officer can be held liable under 1983 is on proof of bad faith, affirmative proof of bad faith?

MR. CEDO: That is correct.

QUESTION: That is your position?

MR. CEDO: That is my position.

Well, first I think that it should be pleaded.

QUESTION: Why plead it if you don't have to prove it?

MR. CEDO: Well, why crossing the bridge before you get to the river? We are at this stage of the pleading, the case was dismissed because it had not been pleaded properly, not because of any consideration --

QUESTION: But what you want to do is go to the other side of the river. You want the moving party in 1983 to take care of all the defenses in his pleading.

MR. CEDO: I would --

QUESTION: There is just one defense.

MR. CEDO: I would ask from him to anticipate and at least give notice of what he intends to say. That is the purpose of pleading, to give notice, to inform as to the essence --

QUESTION: Do you have discovery in Puerto Rico?

MR. CEDO: Yes, we do.

QUESTION: I assumed so.

Thank you.

QUESTION: Supposing you had a complaint in which there were two defendants, one a municipality and the other the chief of police. And say in two counts with the same transaction basically in both. Would you say that there must be pleading of bad faith in the count against the municipality?

MR. CEDO: Well, your very case of Owen v. The City of Independence, Missouri covers that adequately. My personal opinion is that in the face of an immunity you would have to plead an indication of how that immunity would not apply.

QUESTION: But you would agree that under Owen there would be no necessity of pleading bad faith against the municipality?

MR. CEDO: Yes.

QUESTION: And you would say there is an additional element in the cause of action against the individual?

MR. CEDO: Affirmative, yes.

Now, concerning the due process violation I would say that considering the fact that petitioner was granted a hearing and that he was rendered whole and he was reinstated, his claims don't have any foundation. The fundamental requirement of due process is an opportunity to be heard at a meaningful time and in a meaningful way. And decisions of this Court suggests rather strongly, I would say, that an employee who has a hearing held after removal get his due process, for example, Arnett v. Kennedy.

QUESTION: Counsel, is that so clear that it could be decided on the complaint in this case?

MR. CEDO: It was definitely clear because Act 26 of 1974 on which the claim was based does not provide for the celebration of an evidentiary trial-type, formal administrative hearing. It just mentions an opportunity to be heard, which in my opinion, could be accomplished by a chance to file an answer. And petitioner has not alleged that he was denied such opportunity. Besides, petitioner had a hearing and it seems that the statute that created the Commission of investigation, prosecutions and appeals of the police provides that the Commission may confirm, revoke or modify the decisions or acts appealed, it could be said that petitioner's discharge was not in fact final until its time for an appeal had expired or after 15 days after being affirmed upon appeal that a Commission reconsideration was requested.

So he was granted his hearing before his discharge was final and that comes from the very facts that were pleaded. I think the case is very clear.

Thanks for your attention.

MR. CHIEF JUSTICE BURGER: Do you have anything further, Mr. Avery?

REBUTTAL ARGUMENT OF MICHAEL AVERY, ESQ., ON BEHALF OF THE PETITIONER

MR. AVERY: Just two points, if Your Honor please.

First of all, this is a case where the plaintiff did allege that he was entitled to a hearing, and that allegation is supported by regulations which were drafted and promulgated by the respondent in this very case. And so it is a case where if he has any good faith defense that might even remotely or conceivably be imagined, no one other than the respondent could possibly know what his excuse or rationale for not following his own regulations might be. And this is a case that in that sense the burden definitely belongs on him to come forward and escape from the logical import of his own regulation.

Secondly --

QUESTION: I don't have it in front of me right now, but isn't there something in the complaint itself about the conducting of a hearing?

MR. AVERY: The complaint alleges that the plaintiff was entitled to a hearing under the Puerto Rico Police Act of 1974.

QUESTION: But doesn't it also say he got one but it was defective, or --

MR. AVERY: No, he didn't get a hearing, Mr. Justice Rehnquist. There was an investigation by the Legal Division of the Police Department which exonerated the petitioner. But that wasn't a hearing as such. In fact the answer admits -- there was an answer filed in this case and it admits that he was discharged without a hearing. He received no hearing. There was an investigation by an attorney for the Legal Department of the Police Department but not a hearing as such.

QUESTION: The affirmative allegation is that his discharge was without prior hearing.

MR. AVERY: That is correct. That was admitted in the answer.

And the second point was that although the petitioner does not use the phrase "First Amendment" in the complaint, which is what the respondent was referring to when he spoke about the First Amendment issue, the petitioner clearly does set forward the facts which support a First Amendment claim. And we feel that really beyond doubt that the First Amendment claim is very much a part of this case.

Thank you very much.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.