The opinion
LEVIN H. CAMPBELL, Chief Judge
(dissenting).
This is a qualified immunity case. The issue is thus whether defendant in 1985 could reasonably have known that the Constitution prohibited a politically motivated demotion of plaintiff from Executive Director II of the Appeals Board of the Department of Social Services, to his permanent career position of Executive Director I. See Anderson v. Creighton, 483 U.S. 635 , 107 S.Ct. 3034, 3038-39 , 97 L.Ed.2d 523 (1987). I do not believe that it was clear, simply from the Supreme Court’s general remarks in discussing the assistant public defender position at issue in Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), that the present action violated the Constitution. 1 Nor was our circuit precedent at all clear on the issue, then or now.
The post at issue is the Director of the Board of Appeals for the Department of Social Services of the Commonwealth of Puerto Rico. The Department of Social Services is charged with a wide range of responsibilities with regard to “social problems,” particularly the distribution of aid to the aged, the needy, and the infirm. The Board of Appeals is the body within the Department that hears all appeals — about 8,000 a year — from persons dissatisfied with benefits decisions rendered by local level officials. The Director’s duties, under the OP-16 job description, include
1) supervising all Board personnel, 31 employees altogether;
2) establishing “the necessary procedures to hold the hearings on appeals,” in order to ensure impartiality and promptness; and
3) “analyzpng] and makpng] all final decisions on all appeals.”
These duties suggest that the Director is a policymaker of considerable importance, since he both administers Board personnel and appeals procedures, and analyzes and makes final decisions on all appeals. For the reasons that follow, I think the way the Director discharges these functions could vary depending upon the philosophy, policies and electoral “mandate” of the party with which he or she is affiliated. An administration from one political party might, therefore, reasonably believe that it would be hard to carry out its policies effectively through a Director who belonged to another party.
In approaching the problem, we should use the analytical framework recent opinions of this court have prescribed for this type of case. See Mendez-Palou v. Rohena-Betancourt,- 813 F.2d 1255 (1st Cir.1987); Jimenez Fuentes v. Torres Gaztam- *1504 bide, 807 F.2d 236 (1st Cir.1986) (en banc). The purpose of this analysis is to determine if “party affiliation is an appropriate requirement” for a particular position, in acknowledgment of Branti’s description of the exception to the general constitutional prohibition of patronage dismissals. Branti, 445 U.S. at 518 , 100 S.Ct. at 1294-95 . The analysis has two steps. The first is to ask whether the position relates to partisan political interests or concerns. If the answer to this first question is yes, the court proceeds to step two, which is to determine whether the actual responsibilities of the position itself resemble those of a policymaker, a privy to confidential communication, or an officer whose function is such that party affiliation is an equally appropriate requirement. If the answer to both questions is yes, then party affiliation is indeed an appropriate requirement for the job, i.e., persons holding the office have no constitutional protection from patronage dismissal.
The majority in this case proceeds straight to the ultimate question — is party affiliation appropriate — without employing the more structured analysis prescribed in our precedent. Under the requisite analysis, focusing first on the Director’s responsibilities as they relate to supervising Board personnel and establishing appeals procedures, I think the answer to the first of the Jimenez questions is yes. The key is whether the position is in an area of government in which there is “room for political disagreement on goals or their implementation.” Mendez-Palou, 813 F.2d at 1258 (emphasis in original). See also id. at 1259 (“no clearly established constitutional protection against patronage dismissal for those individuals whose positions potentially concerned matters of partisan political interest”) (emphasis added). I think there is room for political disagreement about the extent and type of procedures that are appropriate for appeals from benefits terminations or denials. Whether someone appeals successfully may depend on a number of different factors, some of which at least appear to lie within the Director’s sphere of influence: What kind of a notice of a person’s appeals rights must be provided? What procedures are required for filing an appeal? Is the individual entitled to counsel on appeal? Is the appellant granted access to the file and recommendations of the caseworker (apparently the original decisionmaker)? What exactly must be demonstrated on appeal? What is the appellant’s burden of proof? What evidence is referred to? How quickly or slowly will a decision be rendered?
The above seem to me to be questions that may not be answerable solely by reference to technical-legal criteria. The organization, details, elaborateness, efficiency and speed of the appeals process affect the likelihood of claimants’ success in receiving benefits — and how much the government, in toto, pays out in benefits. A party favoring liberalized benefits might want a more elaborate appeals process. 2 A party fearful of benefits fraud or hostile to the expense of a benefits program might want a differently designed appeals system. Moreover, a creaky, backlogged appeals system could well be the target of an election year challenge, as could a review program perceived as ineffective to check fraud. 3
An example of the potential for the politicization of procedural questions can be seen in the present national administration’s apparent attempt to check (as it saw it) the untrammelled flow of social security *1505 disability benefits by adopting procedural rules and by tougher Disability Review Board decisions. Extensive ideological and political strife ensued, for some are worried about the solvency of the social security benefits fund, while others feel the needs of claimants should prevail. Cf. Lopez v. Heckler, 725 F.2d 1489, 1493-95 (9th Cir.1984) (discussing Secretary’s “nonacquies-cence” in judicial decisions mandating evi-dentiary burdens).
This is not to say that one could not conceivably leave the operation of the appeals program in the hands of a non-partisan director who would approach all questions as purely technical legal-administrative matters. But as the Third Circuit pointed out — responding to a similar argument relative to the office of city solicitor —the question is not whether party affiliation is a necessary requirement for the effective performance of a given office but whether it may be an appropriate requirement. Ness v. Marshall, 660 F.2d at 521-23. There are many examples in our nation where this sort of governmental problem has been dealt with, in one place, by a non-partisan mechanism, in another by a partisan one. Some cities are run by “strong mayors,” elected in partisan elections, while others are run by non-partisan, professional city managers. Some states appoint judges for life, as does the federal government (although by means of a partisan political process), but others elect judges in partisan elections for fixed terms. I do not think it can be said here, as a matter of constitutional law, that the voters and legislature of Puerto Rico may not decide to let the administration in power fill this high-ranking office using partisan criteria. As I say, some of the procedural decisions within the Director’s power ultimately may affect the relative liberality and efficiency with which benefits are granted — a political issue, at bottom. Although some might prefer that this sort of position be free from political influence, reasonable arguments certainly can be made for the superior efficacy of a partisan choice.
Elrod and Branti grant protection to office holders whose removal for partisan political reasons can serve no purpose except patronage; they do not forbid a democratically elected governor from placing persons of his own political persuasion in leadership positions where such is arguably appropriate to implement the policies of a new administration. I do not read Elrod and Branti as constitutionalizing Max Weber’s Prussian civil service as the only permissible way to govern our country. If Elrod and Branti were to be so interpreted, they would amount to one of the most drastic constitutional changes by judicial fiat in the history of our nation, spelling an end to much experimentation with different forms of political administration.
Since the duties of the Director include administration of the Board and supervisory control over appeals procedures — ie., making the Department’s policy as to procedures — the answer to the second question in the Jimenez analysis is also yes. The Director is plainly a significant policymaker. Thus, because the administration of the Board of Appeals involves issues upon which there is room for political disagreement (question one), and because the Director is in a position to make policy with respect to those political issues (question two), the job is one for which political affiliation is (at least arguably at this stage of the case) an appropriate requirement for effective performance.
I believe this conclusion based on the administrative aspect of the Director’s job is itself enough to warrant a finding of qualified immunity. But I also reject the majority’s view in regard to the decision-making aspect. The Director here apparently has the last say as to benefits determinations. While many appeals may be susceptible of purely objective “legal” resolutions, others may turn on the decision-maker’s honestly held policy choices in areas not strictly regulated by law. There can be legitimate “political” disagreements as to the interpretation and administration of benefits programs, i.e., disagreement sometimes based on whether one puts the granting of liberal benefits ahead of the danger that benefits may be granted to the undeserving. A new administration may feel a given Director is too generous or not generous enough. Thus, the answer to the first question in the Jimenez analysis is or *1506 could be yes. And since the Director has the final word in respect to such "gray area” cases, he is a policymaker, making the answer to the second question yes as well.
I concede there is some initial attractiveness to my colleagues’ view that adjudicative functions in a state agency should be discharged only by decisionmakers who are protected against partisan discharge. Certainly one would not want welfare benefits to be dispensed on a partisan basis, i.e., with favoritism shown to claimants of a particular political party. But my colleagues go too far when they construe Elrod and Branti as cases that prevent states and localities from appointing and removing any and all adjudicative decision-makers on a partisan basis. While the partisan appointment of agency decision-makers may carry some risk of fraudulent practices, it need not necessarily do so. Federal judges, after all, are appointed on a partisan basis — not to mention many state judges who run for office in partisan contests. These mechanisms are surely not unconstitutional, nor can it be said that most such judges dispense justice in a partisan manner. Here, moreover, we are not considering judicial officers as such, but rather agency officials. While the Director here is expected to be fair and even-handed, he is also an important part of a political administration which is expected to have its own policies regarding the delicate balance between safeguarding the public fisc and helping the needy. Thus in the gray areas of adjudication, where agency policy is sometimes made, I do not find it unthinkable that the chief adjudicator should reflect the political views of the current administration.
The majority analogizes the Director here to the assistant public defender in Branti . But unlike the latter, the Director’s policymaking power is broad, and his loyalty is owed, through his party, to the public itself. An assistant public defender “makes policy” only in the context of an individual case; moreover, he could not properly be influenced in the conduct of his job by political ideology and loyalty. The unique thing about the public defender position is that the job can only be done ethically one way: by single-minded devotion to the client’s interests. See Branti, 445 U.S. at 519 , 100 S.Ct. at 1295 . The same cannot be said of the Director here. Of course, his technical competence may be susceptible to objective evaluation. But as to the adjudicative as well as administrative guts of his job — granting or denying benefits liberally or conservatively, promptly or slowly, establishing procedures — evaluation of his performance may well depend on one’s political views and affiliations as well.
In conclusion, I think the Secretary could reasonably have believed that political affiliation was an appropriate requirement for this position. That is the bottom line here. I note also that, although there is a fair amount of existing law on what sorts of policymaking positions are protected, there is little precedent on quasi-judicial positions, or positions where political affiliation may or may not be appropriate for reasons different than those implicit in the Jimenez analysis. As we have said in many of these patronage dismissal cases, the law’s unsettled state in a particular Elrod-Branti zone militates in favor of finding qualified immunity. Accordingly, I respectfully disagree with the court’s opinion insofar as it concludes that the law was (or is) settled in this extremely controversial and open arena.
. Branti’s lack of specific guidance beyond its own facts is noted in Judge (now Chief Judge) Gibbons’s poSt-Branti opinion for the Third Circuit in Ness v. Marshall, 660 F.2d 517 (3d Cir.1981), holding that a city solicitor could be discharged for partisan political reasons. As Judge Gibbons observes, Branti’s examples (beyond the disputed assistant public defender post) are limited to a football coach (non-firea-ble for political reasons) and a governor’s speech writer (fireable). Most positions in state and local government are hard to equate to such atypical posts. Id. at 520-21 .
. But cf. Goldberg v. Kelly, 397 U.S. 254, 278-79 , 90 S.Ct. 1011, 1025-26 , 25 L.Ed.2d 287 (Black, J., dissenting) (wondering whether constitution-alizing the administration of a benefits program might deter the state from extending benefits to marginally qualified applicants). See also Hahn v. Gottlieb, 430 F.2d 1243, 1246 (1st Cir.1970) (Coffin, J.) (noting that a court, in determining the procedural protections due a recipient of government largess, "must take care lest we kill the goose in our solicitude for the eggs").
. We have previously noted the relevance to the Branti inquiry of the fact that a particular job relates to the distribution of services that are of vital importance to the electorate. See, e.g., Roman Melendez v. Inclan, 826 F.2d 130, 133 (1st Cir.1987) (discussing Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1985)).