The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1587
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RICHARD WREN
v.
COUNTY OF LUZERNE;
MARYANNE C. PETRILLA;
STEPHEN A. URBAN
Maryanne C. Petrilla;
Stephen A. Urban,
Appellants
_____________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-11-cv-01769)
District Judge: Honorable Richard P. Conaboy
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Argued: October 29, 2013
Before: MCKEE, CHIEF JUDGE, FISHER, and SLOVITER, Circuit Judges
(Filed: December 13, 2013)
Kimberly D. Borland (ARGUED)
Borland & Borland
69 Public Square
11th Floor
Wilkes-Barre, PA 18701
Counsel for Appellee Richard Wren
Mark W. Bufalino
John G. Dean
Joseph J. Joyce, III (ARGUED)
Elliott Greenleaf & Dean
39 Public Square
Suite 1000
Wilkes-Barre, PA 18701
Counsel for Appellants Maryanne C. Petrilla & Stephen A. Urban
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OPINION
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SLOVITER, Circuit Judge.
Richard Wren, who was employed as the Director of Veterans’ Affairs of Luzerne
County beginning in 2005, was fired on September 24, 2009 by the votes of County
Commissioners Maryanne C. Petrilla and Stephen A. Urban. Wren brings this suit
against, inter alia, Petrilla and Urban, alleging that he was unlawfully terminated in
violation of his First Amendment rights, as annunciated in Branti v. Finkel, 445 U.S. 507
(1980), and Elrod v. Burns, 427 U.S. 347 (1976). Petrilla and Urban appeal the District
Court’s partial denial of their motion for summary judgment, asserting that this court has
appellate jurisdiction over this interlocutory matter and that they are entitled to the
defense of qualified immunity. We will not reach the second issue because we conclude
that we do not have jurisdiction to decide the matter.1
The Branti-Elrod line of cases established that dismissals on the basis of political
association are a violation of the First Amendment. There is an exception for the
1
The District Court had jurisdiction over Wren’s 42 U.S.C. § 1983 claim pursuant to 28
U.S.C. § 1331.
2
dismissal of an employee who held a “policymaking” position, Elrod, 427 U.S. at 367-68,
but that exception is a narrow one. See, e.g., Assaf v. Fields, 178 F.3d 170, 177 (3d Cir.
1999); Burns v. Cnty. of Cambria, 971 F.2d 1015, 1023 (3d Cir. 1992).
The exception applies when “‘the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the public office
involved.’” See Assaf, 178 F.3d at 175 (quoting Branti, 445 U.S. at 518). In the qualified
immunity context, that showing depends upon whether a reasonable official, in the same
position, would have been aware that his or her actions violated a clear constitutional
right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). This determination is fact-
specific, dependent on whether the right at issue was clearly established. See Assaf, 178
F.3d at 177. In this case, the parties dispute whether Wren’s constitutional right was
clearly established. That determination requires a full assessment of what it was that
Wren did in his position.
A decision denying summary judgment on the defense of qualified immunity is
considered to be a final judgment immediately appealable under the collateral order
doctrine, to the extent that the denial turns on an issue of law. See McKee v. Hart, 436
F.3d 165, 168-69 (3d Cir. 2006). However, an appellate court lacks jurisdiction when an
interlocutory appeal turns on issues of fact. Forbes v. Twp. of Lower Merion, 313 F.3d
144, 147-48 (3d Cir. 2002) (citing Johnson v. Jones, 515 U.S. 304, 313-16 (1995)).
The District Court denied in part defendants’ motion for summary judgment on the
ground that material facts are in dispute, and it cannot be said, as a matter of law, that the
position of Director of Veterans’ Affairs is one for which political affiliation is an
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appropriate requirement. As Director of Veterans’ Affairs, Wren was responsible for the
management of the veterans’ affairs office, ensuring compliance with federal, state, and
county veterans’ benefits, supervising the processing of applications for benefits,
attending meetings and conferences on veterans’ benefits, visiting veterans’ medical
hospitals and nursing homes, and ordering flags for distribution to county veterans’
organizations for placement on veterans’ gravesites, see 16 Pa. Cons. Stat. § 1922 (2008).
We held in Boyle v. County of Allegheny, 139 F.3d 386, 397-99 (3d Cir. 1998),
that testimony by the relevant hiring authority that political affiliation is not an
appropriate requirement for a particular office is evidence probative of whether the
authority can make the showing required by Branti. Here, Petrilla testified that she did
not consider political affiliation an appropriate requirement for Wren’s position—and
none of the Commissioners testified otherwise—a fact the District Court found
compelling. Although Wren advised the County Commissioners concerning veterans’
issues, which may be considered a political function, he had no input into decisions to
hire or fire employees in his office, which suggests a limited scope of authority. In light
of this record, we cannot conclude as matter of law that the position of Director of
Veterans’ Affairs fell within the Branti-Elrod exception. Because we do not have an
undisputed record of what Wren did in his position, we agree with the District Court that
this case is not appropriate for summary judgment at this time.
Petrilla and Urban contend that this case is controlled by Waskovich v. Morgano, 2
F.3d 1292 (3d Cir. 1993), where we found that the position of Director of Veterans’
Administrative Services for the State of New Jersey fell within the Branti-Elrod
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exception. As the District Court noted, the facts in Waskovich differ considerably from
those here. Waskovich had significant policymaking authority in his position, and was
involved in policy matters on a day-to-day basis. The degree to which Wren was
involved in policymaking on a day-to-day basis is in dispute. Despite the superficial
similarity in that Wren like Waskovich, “orchestrate[d] the provision of veterans’
services,” the scope of Wren’s responsibility appears much narrower and of a more
administrative character than the scope of Waskovich’s responsibilities. Thus, we find
defendants’ reliance on Waskovich unconvincing.
Therefore, because reviewing the District Court’s partial denial of the motion for
summary judgment turns on disputed issues of fact, this court is without jurisdiction and
the appeal shall be accordingly dismissed.
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