Assaf v. Fields

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

5-19-1999

Assaf v. Fields

Precedential or Non-Precedential:

Docket 98-7153

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Recommended Citation

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Filed May 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-7153

EUGENE F. ASSAF,

Appellant

v.

GEORGE C. FIELDS; GARY E. CROWELL

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 97-cv-00343)

District Judge: Hon. William W. Caldwell

Argued: December 14, 1998

Before: SLOVITER and COWEN, Circuit Judges,

and OBERDORFER,* District Judge

(Filed May 19, 1999)

Lawrence S. Markowitz (Argued)

Markowitz & Krevsky

York, PA 17405

Attorney for Appellant

_________________________________________________________________

*Hon. Louis F. Oberdorfer, United States District Judge for the District

of Columbia, sitting by designation.

D. Michael Fisher

Attorney General

R. Douglas Sherman

Calvin R. Koons (Argued)

Senior Deputy Attorneys General

John G. Knorr, III

Chief Deputy Attorney General

Appellate Section

Office of Attorney General

of Pennsylvania

Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Plaintiff Eugene F. Assaf brought this civil rights action

against the Pennsylvania state officials responsible for his

dismissal from public employment. Assaf's complaint,

invoking 42 U.S.C. S 1983, charges that appellees George C.

Fields and Gary E. Crowell terminated his employment for

political reasons, thereby violating the First Amendment

protections for belief and association. The District Court, in

ruling on the defendants' motion for summary judgment,

concluded that Assaf 's job was not one for which party

affiliation is an appropriate requirement but nonetheless

entered summary judgment for defendants on the basis of

qualified immunity. Assaf v. Fields, 999 F. Supp. 622, 630-

33 (M.D.Pa. 1998). Assaf filed a timely appeal. Our review

of the grant of summary judgment is plenary. See Boyle v.

County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d

Cir. 1998).

II.

The record, reviewed in a light favorable to Assaf, reveals

the following: Assaf was hired in October 1988 as Director

2

of the Bureau of Vehicle Management for the

Commonwealth of Pennsylvania. Assaf, a registered

Democrat, was hired by then-Secretary of General Services

David Jannetta, who was also a registered Democrat. At the

time Assaf was hired, Robert Casey, also a Democrat, was

Governor of Pennsylvania.

The Bureau of Vehicle Management is an agency within

the Department of General Services. Assaf reported to the

Deputy Secretary for Procurement, appellee George Fields.

Fields in turn reported to the Director of the Department of

General Services, appellee Gary Crowell. Crowell's position

was a cabinet-level one.

Assaf was advised in writing of his employment as a Fleet

Maintenance Manager (also referred to as Director of the

Bureau of Vehicle Management) and that his position was

under the Senior Management Service, a category of

Commonwealth positions "in the unclassified service which

have broad policy participation and management

responsibility." As such, he was exempt from

unemployment compensation coverage but covered by the

Management Benefits Program. He was further advised that

in that position he "serve[s] at the pleasure of the agency

head."

Assaf 's job description listed as "Major Duties" of the

position: "Directs the Bureau of Vehicle Management to

meet the transportation needs of all requesting

Commonwealth Departments, Agencies, and Commissions

while remaining within the financial guidelines of self-

generated income." The job description enumerated ten

specific duties:

1. Participates with the Deputy Secretary in planning,

developing and implementing appropriate standards,

procedures and policies for obtaining and maintaining

the Commonwealth Automotive Fleet.

2. Stays abreast of the automobile market and

recommends when to purchase vehicles based on

current sales volume, amount of income received,fixed

and semi-fixed expenses, variable expense, andfixed

overhead expense.

3

3. Determines the best type of vehicles to purchase.

. . .

4. Directs the operation of the Commonwealth Garage

concerned with the service and repair of the automotive

fleet. Negotiates and administers regular maintenance

contracts with service Agencies and with dealerships

for repair and preventative maintenance.

5. Directs the maintenance of all records and reports

concerning the Commonwealth Fleet. . . .

6. Oversees the disposition of the Commonwealth

owned vehicles. These vehicles are sold through an oral

auction which is open to the public. Makes sure that

all activities are carried out according to approved

policy. Interacts with the general public whenever

concerns arise.

7. Directs the payments of repair invoices from

various vendors. . . .

8. Oversees the repair of vehicles at the

Commonwealth Garage. . . .

9. Directs the temporary vehicle fleet making it

available for use by the requesting Commonwealth

Agencies to meet their temporary transportation needs.

. . .

10. Works closely with the various Bureau Chiefs and

supervisory personnel to maintain an efficient, logical

and financially sound operation.

Assaf supervised the three divisions that made up the

Bureau: the Administrative Division, the Vehicle Operations

Division, and the Vehicle Maintenance Division. He directly

supervised the three employees who headed these divisions.

The Bureau as a whole employed a total of thirty-three to

forty-six employees over whom Assaf exercised indirect

supervision. His starting salary was $37,000 and at the

time he was terminated his salary had risen to $52,000.

From the written description, it might have appeared that

Assaf 's title as Director signified a public official with

significant authority. Admittedly, the Director ran the day-

to-day operation of the Bureau, which entailed overseeing a

4

fleet of approximately 8,000 vehicles. However, Assaf

testified to the substantial limits of his authority. For

example, the Director did not have the ultimate authority to

hire employees within the Bureau. See Assaf at 50.1 There

is evidence that he also did not have the authority to fire

Bureau employees. See James W. Martin at 31; Gregory

Green at 8-9. Rather, such authority rested ultimately with

the Deputy Secretary for Procurement, a position held by

Fields. See Green at 9. At most, Assaf could formally

reprimand employees who were under his indirect

supervision, which he did on a number of occasions. See

Assaf at 57-60.

Assaf testified that he had no authority over the Bureau's

budget or purchasing decisions and did not negotiate

maintenance contracts with outside vendors. See Assaf at

39, 41, 44. Although Assaf assigned vehicles to the various

agencies, Fields had to approve each such decision and

Fields retained control over executive vehicle assignments.

See Fields at 65-66. Maintenance of the Commonwealth

vehicles was performed at the Commonwealth Garage, and

although Assaf could approve outside repair shops if they

accepted the standard contract from the Commonwealth,

the rates for payment were set according to a

predetermined formula. See Assaf at 43-44; Fields at 61.

Similarly, although Assaf was listed as having

responsibility for auctions, in fact the vehicle auctions were

conducted pursuant to a formula used to select the

vehicles, and vehicles could not be auctioned unless Fields

approved the lists. The target prices for the vehicles at

auction were also set by a formula, see Fields at 62-63, and

the formula preceded Assaf's tenure, see Assaf at 60.

On January 21, 1995, Thomas Ridge, a Republican, was

sworn in as Governor of the Commonwealth of

Pennsylvania. Shortly after Governor Ridge's inauguration,

Jannetta resigned as Secretary of General Services and

Governor Ridge appointed Gary Crowell, a Republican, in

_________________________________________________________________

1. Throughout this opinion all citations to deposition testimony will be

referenced by the name of the deponent followed by the page number of

the transcript.

5

his stead. Governor Ridge reappointed Fields as Deputy

Secretary for Procurement.

On March 29, 1995, Fields notified Assaf by letter that

his services were no longer needed. Fields at 44. The

termination decision was made by Secretary Crowell.

Crowell at 22-23. According to Assaf, Fields informed him

that his termination was for political reasons. See Assaf at

76-77. Fields denies discussing with Assaf whether politics

were involved. See Fields at 44.

Assaf applied for unemployment compensation pursuant

to the Pennsylvania Unemployment Compensation Law. His

application was ultimately denied by the Pennsylvania

Unemployment Board of Review, which ruled that Assaf

was not entitled to benefits because his was "a major non-

tenured policymaking" position and therefore specifically

exempted from the unemployment compensation scheme.

On March 5, 1997, Assaf filed this lawsuit in the District

Court for the Middle District of Pennsylvania, charging that

Fields and Crowell violated the First Amendment by

terminating his employment for political reasons. Fields

and Crowell moved for summary judgment. Without

conceding that Assaf had in fact been fired for political

reasons, they urged that Assaf's job was, in any event, not

one for which the First Amendment provides protection. In

the alternative, they argued that even if Assaf 's position

was constitutionally protected they were nonetheless

entitled to qualified immunity because the unlawfulness of

the dismissal would not have been apparent to reasonable

officials under clearly established law.

In ruling on the defendants' motion, the District Court

first rejected the defendants' argument that Assaf had

received the position through political patronage and could

not now complain that he lost the position for a similar

reason. See Assaf, 999 F. Supp. at 628 (citing Branti v.

Finkel, 445 U.S. 507, 512 n.6 (1980) (rejecting argument

that "because the [employees] knew the system was a

patronage system when they were hired, they did not have

a reasonable expectation of being rejected when control of

the office shifted to [another party].")). The court next

rejected defendants' argument that political affiliation was

6

a qualification for the job. The court noted that"the

overarching factor is whether the worker has `meaningful

input into decision making concerning the nature and

scope of a major [government] program.' " Id. at 630 (citing

Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d

Cir. 1994)). The District Court concluded that "overseeing

the cars owned by the Commonwealth and used by its

agencies . . . is not a major government program . .. [as it

does not] involve services to the general public or to a

sizable portion of the public." Id. The court thus ruled that

Assaf was entitled to First Amendment protection from

political discharge. Nonetheless, it held that the defendants

were entitled to qualified immunity because it was not

clearly established that Assaf could not be fired for political

reasons. See id. at 633.

III.

Summary judgment is appropriate only if the record

discloses that "there is no genuine issue as to any material

fact and the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c). The record is to be

examined in a light most favorable to the non-movant, in

this case, Assaf. See Peters v. Delaware River Port Auth., 16

F.3d 1346, 1349 (3d Cir. 1994).

At the outset, we note that the only issue before us on

this appeal is the propriety of the District Court's ruling

that Fields and Crowell were entitled to qualified immunity.

Although much of appellees' brief appears directed to the

question of whether Assaf's position was "inherently

political," Appellees' Br. at 25, the appellees have neither

cross-appealed the ruling on that issue nor have they

included this as one of their issues on appeal. Accordingly,

we will focus on the District Court's determination that

under clearly established law, reasonable officials would not

have perceived that terminating Assaf for political reasons

was unconstitutional. This necessarily requires that we

review the applicable law, with particular attention to the

dates the leading opinions were announced.

In Siegert v. Gilley, 500 U.S. 226, 231 (1991), the

Supreme Court explained that "the proper analytical

7

framework" for addressing qualified immunity claims is to

ascertain first whether plaintiff's claims make out a

violation of a constitutional right. See also Brown v.

Grabowski, 922 F.2d 1097, 1110 (3d Cir. 1990). Only if

such a violation has been alleged need we proceed to

determine whether, in the light of "clearly established law,"

the unlawfulness of the action would have been apparent to

a reasonable official. See Siegert, 500 U.S. at 232 ("A

necessary concomitant to the determination of whether the

constitutional right asserted by the plaintiff is `clearly

established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a

violation of a constitutional right at all."); County of

Sacramento v. Lewis, 523 U.S. 833, ____ n.5, 118 S. Ct.

1708, 1714 n.5 (1998) ("As in any action under S 1983, the

first step is to identify the exact contours of the underlying

right said to have been violated.").

The Supreme Court first established the proposition that

as a general matter, a public employer cannot, consistently

with the First Amendment, terminate a public employee for

political reasons in Elrod v. Burns, 427 U.S. 347 (1976). In

writing for a three-Justice plurality, Justice Brennan

reasoned that because requiring financial and campaign

assistance to the favored political party "is tantamount to

coerced belief " and a required pledge of allegiance

"compromise[s] the individual's true beliefs," id. at 355, it

follows that "the practice of patronage dismissals clearly

infringes First Amendment interests," id. at 360. He also

reasoned that conditioning public employment on

patronage support "inhibits protected belief and

association." Id. at 359 (citing, inter alia, Perry v.

Sindermann, 408 U.S. 593 (1972)).

He recognized that the prohibition was not absolute, but

allowed an exception only for those in "policymaking"

positions "to insure that policies which the electorate has

sanctioned are effectively implemented." Id. at 372. The

plurality opinion states that "[i]n determining whether an

employee occupies a policymaking position, consideration

should . . . be given to whether the employee acts as an

adviser or formulates plans for the implementation of broad

goals." Id. at 368. The Court concluded, however, that the

8

employees whose terminations were at issue in Elrod, (the

chief deputy of the process division of a sheriff's office, a

process server, a process division employee, and a bailiff

and security guard at a county juvenile court) did not fall

within the exception.

The concurring opinion, written by Justice Stewart on

behalf of himself and one other Justice, declined to

comment on the first of the plurality's two rationales (that

a patronage system tended to coerce employees into

compromising their true beliefs) but agreed with the second

rationale, i.e. that patronage dismissals effectively imposed

an unconstitutional condition on the receipt of a public

benefit. The two concurring Justices also agreed that the

Elrod plaintiffs did not fall within the class of employees

with "policymaking" responsibilities who were exempted

from First Amendment protection. See id. at 374-75.

Four years later, in Branti v. Finkel, 445 U.S. 507 (1980),

a firm majority of the Court, this time speaking through

Justice Stevens, reiterated that the First Amendment

prohibits discharge of public employees for their party

affiliation. In Branti, the Court addressed the district

court's conclusion, affirmed by the court of appeals, that

assistant public defenders were not the type of

policymaking, confidential employees exempted from the

general prohibition on politically motivated dismissals. The

Court eschewed overreliance on labels such as

"confidential" or "policymaking" and stated that "[i]n sum,

the ultimate inquiry is not whether the label `policymaker'

or `confidential' fits a particular position; rather, the

question is whether the hiring authority can demonstrate

that party affiliation is an appropriate requirement for the

effective performance of the public office involved." Id. at

518. Applying this standard, the Court agreed that

assistant public defenders did not fall within the exception

to the general prohibition against politically motivated

dismissals from public employment. See id. at 520.

The Branti-Elrod decisions were widely publicized,

particularly among officials in positions in state and local

governments who have authority to hire and fire

government employees. It is reflective of this general

knowledge that Fields and Crowell do not contend that they

9

were unaware of the severe limitation that was now placed

on terminations because of political affiliation. All that

remained after Branti-Elrod was the application of the

principle to the positions of the plaintiffs who brought suit.

Illustrations were soon forthcoming from all the circuits.

This court applied and elaborated on the principles

enunciated in Elrod and Branti in a series of cases decided

over the last eighteen years. The year after the Branti

decision, we stated in Ness v. Marshall, 660 F.2d 517, 521

(3d Cir. 1981), that the Court's opinion calls for a

"functional analysis," which entails an examination of

whether "a difference in party affiliation[would] be highly

likely to cause an official to be ineffective in carrying out

the duties and responsibilities of the office," in which case

a dismissal for political reasons "would not offend the First

Amendment." We noted that the Elrod plurality suggested

that "employees who act as advisers, who formulate plans

for implementing broad goals, or whose responsibilities are

either not well defined or of broad scope are more likely to

function as policymakers." Id. at 520 (citing Elrod, 427 U.S.

at 367-68). Because the duties of the plaintiffs in Ness, the

city solicitor and assistant city solicitors of York,

Pennsylvania, included "rendering legal opinions, drafting

ordinances, [and] negotiating contracts" for the city, which

we concluded were "intimately related to city policy," we

held that party affiliation was an "appropriate (even if not

necessary) requirement" for their effective performance. Id.

at 522.

Again, in Brown v. Trench, 787 F.2d 167 (3d Cir. 1986),

we held that the Assistant Director of Public Information for

a Pennsylvania county could be dismissed on account of

her political affiliation because her "position is one which

cannot be performed effectively except by someone who

shares the political beliefs of the Commissioners." Id. at

170. Although we reversed judgment for the defendants

because Brown had not been given a pretermination

hearing, we used that decision as a vehicle to "specif[y] the

factors that indicate that a position falls within the Branti

test." Id. at 169. Looking to cases decided by other courts,

we identified as relevant "whether the employee's duties are

simply clerical or related to law enforcement" or

10

"nondiscretionary or technical," "whether the employee

participates in Council discussions or other meetings,

whether the employee prepares budgets or has authority to

hire or fire employees, the salary of the employee, and the

employee's power to control others and to speak in the

name of policymakers." Id. (citations omitted).

After reviewing these considerations, we concluded that

the "key factor seems to be not whether the employee was

a supervisor or had a great deal of responsibility but

whether the employee has `meaningful input into

decisionmaking concerning the nature and scope of a major

[government] program.' " Id. at 169-70 (quoting Nekolny v.

Painter, 653 F.2d 1164 (7th Cir. 1981)). This factor was to

be determinative in many of the cases we decided

thereafter.

In Zold v. Township of Mantua, 935 F.2d 633 (3d Cir.

1991), we were called upon to decide whether the politically

motivated discharge of a deputy municipal clerk violated

the First Amendment. Synthesizing our case law on the

subject, we stated that

the ultimate inquiry . . . is whether the hiring authority

can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the

particular office involved. . . . [S]hould a difference in

party affiliation be highly likely to cause an official to

be ineffective in carrying out the duties and

responsibilities of the office, dismissals for that reason

would not offend the First Amendment. The burden of

proof is on the defendant to demonstrate an overriding

interest in order to validate an encroachment on an

employee's First Amendment rights.

Id. at 635 (quotation marks and citations omitted). In light

of these principles we concluded that the deputy municipal

clerk--whose duties included "acting as (1) secretary to the

governing body, (2) secretary of the municipal corporation,

(3) election official and (4) administrative official on the

municipal level," id. at 637--was not a position for which

political firing was permissible. See id. at 640.

In addition to holding the politically motivated discharges

of the deputy clerk impermissible in Zold, we also found

11

impermissible the discharge of a second deputy recorder of

deeds, see Furlong v. Gudknecht, 808 F.2d 233, 238 (3d

Cir. 1986); a deputy sheriff, see Burns v. County of

Cambria, 971 F.2d 1015, 1022 (3d Cir. 1992); and a deputy

director of marketing and communications for a county

aviation department, see Boyle v. County of Allegheny

Pennsylvania, 139 F.3d 386, 401 (3d Cir. 1998). On the

other side of the line, we found that political affiliation was

relevant for a director of a state agency concerned with the

provision of veterans' benefits, see Waskovich v. Morgano, 2

F.3d 1292, 1303 (3d Cir. 1993), a secretary of an interstate

port authority, see Peters, 16 F.3d at 1359, as well as the

county assistant director of public information referred to

above, see Brown, 787 F.2d at 170.

The District Court's conclusion that Assaf's position was

not one for which political affiliation may be required was

fully supported by the evidence submitted in connection

with the summary judgment issue, as Assaf did not have

significant input into a major government program within

the contemplation of our case law. However, the District

Court proceeded to hold that it was not clearly established

that Assaf 's position was one for which political affiliation

could not be required and that therefore the defendant

officials were entitled to qualified immunity. It offered three

rationales for this conclusion.

The first was that "except for Waskovich, the existing

Third Circuit precedent provided no guidance." Assaf, 999

F. Supp. at 633. However, Waskovich itself emphasized the

same factors identified in our prior cases: whether the

employee had "meaningful input into decision making

concerning the nature and scope of a major [government]

program." Waskovich, 2 F.3d at 1297 (quoting Brown, 787

F.2d at 169-70). Instead, the District Court's analysis

appears to require a closer factual correspondence between

the case under examination and prior decided cases than is

consistent with qualified immunity doctrine and its

application by this court.

When deciding whether the law is clearly established, the

Supreme Court has cautioned against looking at the

constitutional issue too abstractly. Anderson v. Creighton,

483 U.S. 635, 639 (1987). Rather, the right the official is

12

alleged to have violated must have been `clearly established'

in a more particularized, and hence more relevant, sense:

The contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right." Id. at 640. On the other hand, "This is

not to say that an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent." Id.

(citation omitted).

Given the nature of the inquiry in the Branti-Elrod cases,

we reject appellees' argument that qualified immunity is

"well suited to cases where there is no `bright line' rule."

Appellees' Br. At 12. Were we to adopt this position, we

would effectively eviscerate the constitutional imperative

behind Branti-Elrod jurisprudence. Under the qualified

immunity regime contemplated by appellees, liability in

such areas could never attach because the lack of"bright

line" rules inherent in the doctrine would continually

provide cover for violations of constitutional rights. In an

earlier case in which we rejected the defendants' qualified

immunity claim, we explained that if we were to require

" `precise factual correspondence' between the case at issue

and a previous case . . . we would not be `faithful to the

purposes of immunity by permitting . . . officials one

liability-free violation of a constitutional or statutory

requirement.' " Burns, 971 F.2d at 1024 (quoting People of

Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d

139, 144-45 (3d Cir. 1984)).

Contrary to the District Court's assertion, our cases have

given guidance to government officials within our circuit.

An employee may be terminated for political reasons only if

"a difference in party affiliation [is] highly likely to cause an

official to be ineffective in carrying out the duties and

responsibilities of the office," Waskovich, 2 F.3d at 1297

(internal quotation marks omited), and that only if an

employee's duties make it possible to cause "serious

political embarrassment," id. at 1302, will the position meet

the narrow Branti-Elrod exception.

We have noted that the inquiry into the employee's duties

is a "fact specific" one, id. at 1297 (quoting Zold, 935 F.2d

13

at 635), and that although we look to "the functions of the

public office in question and not the actual past duties of

the particular employee involved," id. (quoting Brown, 787

F.2d at 168) (alteration and internal quotation marks

omitted) evidence of past job duties may be, and often is,

informative, see Peters, 16 F.3d at 1353.

Officials to whom this court applied the Branti-Elrod

exception before Assaf 's termination, such as the director

of an interstate port authority charged with, inter alia, the

responsibility for developing a master economic plan for an

interstate district, in Peters, 16 F.3d at 1354-55, the

director of a state veteran's services agency responsible for

overseeing the delivery of benefits and services to veterans,

in Waskovich, 2 F.3d at 1297, and the secretary for a

county's office of public information charged with duties

such as "preparing and distributing press releases,

contacting media representatives, and promoting county

projects," and who hence represented the county

government to the public, in Brown, 787 F.2d at 168, were

those with responsibility connected to major government

programs. The common thread among them is that their

positions related to the government's activity vis-a-vis the

public. That is, these positions entail the formulation or

implementation of policies that have a direct impact on the

public or the representation of government policies to the

public.

By contrast, Assaf was charged with the responsibility of

directing--within a very narrow compass of authority--an

agency overseeing the Commonwealth's motor pool. While

this is, to be sure, an important function, it is not a "major

government program" in the sense that phrase is used in

our case law. The acquisition, maintenance, and disposition

of the Commonwealth's vehicles is a largely endogenous

function of the state government and as such serves an

internal and practical purpose--supplying vehicles to

Commonwealth agencies and executives, maintaining these

vehicles, and overseeing the purchase and sale of the

vehicles. There is nothing in these functions that would

lead a reasonable official to conclude that the Director of

the Bureau of Vehicle Management made such politically

sensitive policy judgments that the Director need have a

14

common political philosophy with the incumbent political

regime.

Moreover, Assaf's position did not involve significant

contact with the public. He did not represent the

Commonwealth or speak in its name, and was thus unlike

the plaintiff in Brown who "present[ed] the views of the

[County] Commissioners to the press and public on a daily

basis." 787 F.2d at 170. Assaf's only interaction with the

public occurred at the auction of the surplus fleet vehicles,

plainly not the type of public appearance that requires the

employee to hew to a particular party's line. As the District

Court noted, to the extent that this function involves

interaction with the public, it is "a tiny segment of the

public, who appear voluntarily for what is essentially a

commercial transaction--the purchase of a car." Assaf, 999

F. Supp. at 630.

It should not have been difficult to see that far from

representing the government, as was the plaintiff's duty in

Brown, Assaf's public contact was much more like that at

issue in Zold, where we found that political allegiance was

not an appropriate criterion for the decision to terminate

the plaintiff. In Zold, the public contact of the plaintiff, the

deputy township clerk, was more extensive than Assaf's,

involving as it did "informing reporters about the agenda of

upcoming meetings and . . . receiving inquiries and

complaints from the electorate . . . and responding in kind."

935 F.2d at 638 (citation and internal quotation marks

omitted).

We reject appellees' argument that our decision in

Waskovich could have been understood by reasonable

officials to render the political firing of Assaf lawful. The

plaintiff in Waskovich was the former Director of the New

Jersey Division of Veterans' Administrative Services, and as

such was responsible for the administration of services and

benefits to an estimated 900,000 veterans throughout the

state. See Waskovich, 2 F.3d at 1302. Although Waskovich

oversaw the day-to-day operations of veterans' facilities, he

also advocated for the veterans that were in the state's care.

See id. at 1300. We described his role as that of a

government official who "orchestrate[s] the provision of

veteran services." Id. at 1302. In holding Waskovich's

15

position exempt, we emphasized that Waskovich had

significant policymaking authority with respect to this

position, and that "he was involved in policy matters on a

day-to-day basis, that he made recommendations on policy

matters on several occasions, that his superiors asked for

his views of major policy proposals such as capital

improvement programs, and that he often opposed policies

they espoused." Id. at 1300.

Assaf's position, on the other hand, concerns the

administration of the state's fleet of vehicles. Without

denigrating the importance of such a position, there is no

reason to conclude that high state officials would have

analogized Assaf's position to Waskovich's. In light of

Assaf's lack of any significant contact with the public and

the undisputed fact that Assaf's level of responsibility did

not touch on politically sensitive issues, which would raise

the likelihood of serious political embarrassment, no official

cognizant of the existing precedents of this court could have

concluded that the modest managerial responsibilities over

the Commonwealth agencies' fleet of cars would constitute

meaningful input into a major government program.

The second reason given by the District Court for its

qualified immunity decision was that Assaf's status as

"middle management" made it objectively reasonable for

appellees to believe that his position was subject to

patronage dismissal. Nothing in this circuit's precedents

suggests that middle managers qua middle managers are

more likely to fall within the exception than other types of

employees. In fact, not one of our Branti-Elrod decisions

even mentions the term "middle management" or"middle

manager." To the contrary, as we observed in Brown,

managerial or supervisory authority, by itself, does not

suffice to bring a position within the Branti-Elrod exception.

See Brown, 787 F.2d at 169-70. In short, to label someone

a middle manager says nothing about whether or not that

person has significant policy-making responsibilities that

make adherence to the incumbent party's political

philosophy a necessary job requirement.

In a similar vein, the District Court suggested that the

division of authority between the Seventh Circuit in Selch v.

Letts, 5 F.3d 1040 (7th Cir. 1993), and the Fourth Circuit

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in Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993),

supports the determination that it was unclear whether

Assaf's duties were such that he was subject to patronage

dismissal. These cases have little to say about the kind of

position involved here, nor do they stand for the

proposition, implicit in the District Court's analysis, that

middle managers may be subject to political firing. Selch

concerned the position of "subdistrict superintendent," a

job that involved "plan[ning the] annual workload and

determin[ing] resource requirements based upon that plan;

--investigat[ing] and tak[ing] corrective action on

complaints and information requests from the general

public; [and] --provid[ing] personal supervision, personnel,

and equipment during emergencies, such as snow and ice

removal, detours, accidents, and road repairs, etc." Id. at

1044-45. Akers involved the holder of a similar job--that of

"county maintenance superintendent." The Seventh Circuit

in Selch held that the position was one for which patronage

dismissal was constitutionally permissible; the Fourth in

Akers had held the opposite.

The Selch and Akers plaintiffs had a great deal of

responsibility to decide how the physical maintenance of

streets gets done, and, as is well known, local political

regimes can stand or fall on the incumbents' ability to fix

potholes and remove snow. In any event, those decisions

from other circuits cannot reasonably have been relied on

by officials in a state within this court's jurisdiction when

this court has numerous opinions to serve as guidance on

the subject.

The final reason offered by the District Court in support

of qualified immunity was the observation that"Assaf's

duties were not merely technical, he participated in

meetings, and he could control others." Assaf, 999 F. Supp.

at 633. This description, however, could just as well apply

to any public employee with a measure of supervisory

responsibility. Although Assaf met with the Deputy

Secretary every two weeks along with the other Bureau

Directors, occasionally met with Fields alone, and on three

occasions attended out-of-state programs held by the

National Association of Fleet Administrators that

highlighted products and involved discussions of fleet

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management techniques, these functions say nothing

significant about the extent to which his duties required

that he have the same political affiliation as the incumbent

regime.

In his position as Director of the Bureau of Vehicle

Management for the Commonwealth, Assaf had

management responsibilities in three principal areas: (1)

obtaining and maintaining the Commonwealth's fleet of

vehicles; (2) directing the operation of the Commonwealth

Garage (i.e., supervising the maintenance of the fleet); and

(3) overseeing the disposition of Commonwealth-owned

vehicles at auction. These duties do not involve matters

that have an impact on the public nor does the Bureau

Director represent the government in its interactions with

the public. It would be manifestly unreasonable for officials

to believe that such an intragovernmental operation as the

management of the state's fleet of vehicles involves

politically sensitive matters.

Although Assaf's lack of input into a program that can

be considered major is sufficient to establish that it should

have been apparent to reasonable officials that his job was

protected under the First Amendment, it should also have

been known to his superiors that Assaf's level of

responsibility within the Bureau was not very significant. In

particular, the record suggests that Assaf did not enjoy the

power to hire or fire employees, but only to reprimand

them. He directly supervised only three employees. He

oversaw the purchase of vehicles, but did not have

authority to make purchasing decisions for the

Commonwealth. He had no input into his budget. As

Bureau Director, he managed the Commonwealth Garage,

but had no authority to negotiate maintenance contracts

with outside vendors. Assaf oversaw the administration of

the auctions, but the selection of cars and the target prices

to be achieved at auction were set by formula, not

according to the Director's initiative. Although Assaf

instituted a set of procedures for the conduct of the auction

when he learned of dissatisfaction with the auction process,

the minor nature of the changes, i.e. changing the process

for counting money, installing a locking door on the auction

stage, and attempting to ensure that the target prices were

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obtained, see Assaf at 93-95, show the technical nature of

his input.

Appellees make much of the fact that Assaf forwarded to

Fields a suggestion for altering the formula for calculating

the labor rates for maintenance contracts (a suggestion

ultimately adopted by Fields), but we do not find in this

event an indicium of "significant input into broad goals"

sufficient to support qualified immunity. Leaving aside the

fact that the suggestion was not, in the first instance, the

product of any initiative on Assaf's part, the narrow ambit

of the suggestion and the fact that it was up to Fields to

make the ultimate decision as to whether it would be

implemented further suggest that such "broad goals" as the

Bureau may have had were firmly in the control of Fields,

not Assaf. As the District Court aptly summed up, "the

plaintiff ran the day-to-day operation of the Bureau, but

Fields kept a `tight rein.' " Assaf, 999 F. Supp. at 626.

In an earlier Branti-Elrod case, we rejected the

defendants' contention that the right at issue was not

clearly established, stating that "we are satisfied that the

decisions of this court have been sufficiently consistent to

have clearly established to all state and municipal

employers that firing or other adverse employment action

for political reasons contravenes the Constitution unless

defendants could show that the particular position came

within the narrow exception." Burns, 971 F.2d at 1024.

That conclusion is just as applicable here. Here, as in

Burns, the defendants "should have related this established

law to the instant situation." Id. at 1025, (quoting Hicks v.

Feeney, 770 F.2d 375, 380 (3d Cir. 1985) (internal

quotation marks omitted)).

The nature and limits of Assaf's responsibilities and

authority were not unknown to defendants Fields and

Crowell. After all, it was Fields to whom Assaf directly

reported, and Fields in turn reported to Crowell. In fact,

Crowell who, as the Secretary of General Services, was

responsible for Assaf's termination, testified at his

deposition that party affiliation was not an appropriate

requirement for the job. See Crowell at 61. In Burns, we

saw no reason why any "reasonable employer" would have

thought that the employee "could be fired for political

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reasons." Burns, 971 F.2d at 1024. Any hypothetical

reasonable official should have known that the limited

nature of Assaf's authority would place his position in line

with those that we held were protected by the First

Amendment in Zold (deputy municipal clerk who ran day-

to-day functions of the clerk's office), Furlong (second

deputy recorder of deeds, who satisfied mortgages, recorded

documents and forwarded taxes to the relevant authorities),

and Burns (deputy sheriff who was responsible for serving

process, transporting prisoners, and guarding courtrooms).

Consequently, we hold that a reasonable official would

not have concluded under clearly established law that

political loyalty could be required for Assaf's position.

IV.

For the reasons set forth, we will reverse the decision of

the District Court granting summary judgment to

defendants on the ground that they have qualified

immunity. As the defendants have argued that they did not

dismiss Assaf for political reasons, we will remand for

further proceedings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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