know you're on it today we're seeking a decision to reverse i did sit in of the district court denying the affirmative defense of qualified immunity to the appellants i mean let me make sure that i'm right in  this is a situation where the plan of came in and i'm not sure whether or not it's in his job description or not be took upon himself to start from a gating policies for his department and no one jones to moan that he saw these policies i strictly summary judgment and a kind of a strange procedure for determining facts in the context of a summary judgment motion but there was no qualified immunity issue there and so the issue that we have to do it is whether or not there was a reason responsible for the budget but he also helped individuals apply for the benefits so you know i think you could split it that way sitting down with someone and you know filling out the appropriate forms in order to make them eligible to receive the benefits i guess that would be administrative in nature as software's fields you have to look to see whether thousand veterans you don't need thirty six thousand votes to be elected he's going out into the community he's going monthly to veterans organizations and in talking about the programs that are offered and you know those kind of things could be election issues for veterans their spouses and their families or their important issues to their life and i think you can cause embarrassment to a county commissioner in that capacity i she didn't consider political affiliation as haven't anything to do with this particular well but that was the boil decision that said you know if the decision makers and then there they had a majority saying that  this the paucity of your case it's in an unusual posterior before us at least my viewpoint we have the jurisdictional question which i think is a close question always is on these qualified immunity appeals when there are factual underpinnings that may be in dispute in here but in essence what i see you peeling from is the legal question that the district court established that that that ran or that the commissioners in getting rid of ren were entitled to the l ron brandt the exception that's essentially what the district court said i think that's exactly right ok and you're here saying we have jurisdiction to consider this yes or on it we should flip that upside down and say you know what it was clearly established that ren fell within the hour on brandy exception or at least that what you're saying or at least that it was not clearly established that he was had first amendment protection whether it is reasonable for them to believe that yes or no out ok that's that's you know that's i think we're on the legal issue of only clearly established and all these collateral facts that may go to whether he had a first memory protect a right is is more to the first problem whether his constitutional rights were violated whereas were far i'm focusing and this appeal and whether those rights were clearly established a on one hand if this is the legal scale and want to hand we could go with the district court or the other hand we could go with your interpretation of if on behalf of the commissioners but in the middle we could say you know what there are too many facts here and that can't be determined as a question of law and that was the first part of this your courts determination and if that's the case we can send this thing back with a firm in the district court or by saying we don't have jurisdiction to consider but i respectfully disagree that the issue of whether it's clearly established would go to the body of case law that's available but i don't but don't some of the facts that are unanswered here factor into our determination i don't i don't think i think he's a public court the court said there's very few decisions that deal with whether this is a policy making position or not and there was two cases side at the pounds cases out of the seventh circuit and it was also a county level employee it was of a v s o veteran services offer officer who did only that he would you would come in he would help you try to obtain the benefits that you thought you were entitled to the court there found that brandy l rod did position where he you manage cemeteries and nursing homes but i think that's that's the body of case law that we have to look at to see is it clearly established whether or not his rights were also mentally violated and i agree that those facts are going to be key in that determination is a separate issue and what i think the supreme court did in pierson was say we can look at the clearly established prong without having to look at whether there was a please court i'm kimberly borland i'm here on behalf of richard wren i think the significance of oil is in establishing which of course came after must go which i for which political affiliation could be an appropriate qualification the key as far as boyle is concerned is that in our case we have the majority commissioner mari petroleum who states that she did not believe that this was a position which was appropriate for political affiliation but urban doesn't state that i can i as well my should've started with the look at who was the point i was about to make the point i was about to make is that the county solicitor mr deluca not only says that it was not an appropriate position for political affiliation but he also says that it is a matter of law matter of policy and a matter of law it was understood by the county solicitor who advised the county commissioners that that was the state of the law that it was indeed clearly established at that point now judge mckee your questions about what the particular role was in mr wrenn play is an appropriate question certainly the summary judgment level judge caught a boy found review of that at some point but at this point for purposes of what was understood by reasonable county commissioner is that there was a dispute of the facts of material facts are and dispute but what's not really in dispute tasked with the duties to supervise operate and establish those veterans programs while the pennsylvania statute for the purposes of a countywide office of the director of veterans affairs was to road i don't i don't believe so your honor i think by saying but those are as a fairly conclusory terms of establishing policies and making budgets mr wrenn had no budget authority with respect to the county he simply provided to the county he believed the appropriate expenditures ought to be in the coming year but he had no authority to make budgets any more than anyone else who was employed in the county and submitted those kinds of requests across the board there isn't any authority that says it by submitting proposed budgets that makes you a policymaker the policies that are rougher once in the record relate to internal operating policies for that for that particular office not for countywide veteran each state why position twenty twenty years ago paid sixty four thousand dollars a year oversaw a thousand employees mr rand was paid two thirds of that he supervised three employees  acknowledged as in a summary judgment stage the mistrust of each participated in numerous staff meetings on departmental divisional level was involved in policy matters on a day to day basis and the supervisors asked for his views of major policy proposals such as capital improvement programs for the contrary with mr must go with mr wrenn engaged in no cabinet type discussions no group discussions of the county commissioners on issues of policy he rarely worked with the county commissioners he had noted ace no day to day specific contact with individual members of the board of commissioners with respect to setting policies his successor testified he had been asked to establish any policies and self in mr rense place so that the the point of that is not again to argue the summary judgment motion as to the county the point is that the county officials were aware they were seeking qualified immunity were aware of the factual context of what mr rand's position was keeping in mind that the determined at all it's a matter of law the matter of law turns on what the facts are detailing the particular contours of the positions that are a question and those facts you know judge conboy identified one that both commissioner patrol and the solicitor for the county had believed that this was not a position appropriate for political affiliation and to the commission of the solicitor to look at it stated that that was a matter of  and three and with regard to the the issues of the statutory duties that have been imposed upon both mr wrenn by comparison to mr westover each different statute provided for different different requirements and different obligations in terms of whether they were could be comparable for pointed out that the facts that were laid out were in dispute as to the specific duties that he had and since it's a fact based inquiry under the old that was an appropriate determination  the remaining remaining questions that relate to that after those those inquiries are made are what are you know what with a reasonable person in the context of the of the person seeking the qualified immunity what should they have known and clearly the advice from their their solicitor mr deluca was available to them that this was a clearly established principle as to this position and commissioner patrollers of conceded that so those those are the responses that i would make to the positions taken by mr joyce on behalf of his clients was once again i would point out that the factual inquiry to as to whether his first memorize were violated is separate and apart from whether he had those rights in the first instance and whether those rights were clearly supervise the kinds of things that a manager of the very small position in the ministry of total if you will has discretion those kinds of rules that boss can lay down to the people that you put to him  those are the kinds of policies were talking about here is you saying to something broader he control when he took office there were no procedures procedures for what for anything when he took office it was essentially a blank slate so he began what he office the submission of budgets things of that way but once again i think that's that's a path we don't need to necessarily go down when it's it's firmly established that his main functions were to make sure the constituents of those those who are eligible to get benefits were given the benefits when we look at the case law that was out there it's very analogous we have the seventh circuit the second circuit cases where there are probably employees that would be below mr ran at loser income downy and they're found to be policy makers so whether we have to go through the analysis to find out whether or not there was a constitutional violation i think is separate and apart from what case law was out there what would the commissioners think if if i read pounds or savage you know i don't think there's any question that he would fall within the brandy al rawi exception and i think that the case that the court even struggling with the first analysis and saying that it's a close call reflects that it's it's not clearly established that mr rand enjoyed first amendment protection and in his position a legal question and the court has there there is some factual underpinning to in that the analysis the court made was like double jeopardy we got up we got to look at two indictments so there's there's a close  calm conflict that i pointed out before and it doesn't it's seems to me for us to determine that it wasn't clearly established as to what the wall was  to support your claim your client's chloral position you have to look at the facts i think very superficially but you have to look at them and if you have to look at them the clearly established is a matter of law is there a superficial fact element to it yes and they recognize that and fact they've granted that in situations where they've knowledge that whether there's a constitutional violation is so fact intensive that when i begin to do that part of the analysis because it really doesn't help develop our constitutional law because it's so fact dependent that it's really no good to anybody except legal bucket where and i understand why you want to get us there because then you get into a question of law and that's that helps you but i'm talking about a factual inquiry in the factual market what exactly did he do if this dispute around that that's a very