PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEGGY S. MCCREREY,

Plaintiff-Appellant,

v.

RAY ALLEN, JR.; JACK KOTVAS, in his

individual capacity,

Defendants-Appellees, No. 96-1880

and

COMMONWEALTH OF VIRGINIA,

Department of Professional and

Occupational Regulation,

Defendant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CA-95-497-3)

Argued: March 6, 1997

Decided: July 8, 1997

Before RUSSELL, HALL, and NIEMEYER,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Hall wrote the opinion, in

which Judge Russell and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Rodney Alan Smolla, Marshall-Wythe School of Law,

COLLEGE OF WILLIAM & MARY, Williamsburg, Virginia, for
Appellant. Guy Winston Horsley, Jr., Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Gerald T. Zerkin, Melanie A.

Hopper, Barbara J. Hughes, GERALD T. ZERKIN & ASSOCIATES,

Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney

General of Virginia, Catherine C. Hammond, Deputy Attorney General, Neil A.G. McPhie, Senior Assistant Attorney General, OFFICE

OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

In this civil rights action against her former supervisor and the

person hired to fill her position at a state agency, Peggy S. McCrerey

claimed that the decisions to fire and replace her were politically

motivated and that her First Amendment rights were thereby

violated.

The district court granted summary judgment to the defendants, and

we now affirm.

The Virginia Department of Professional and Occupational Regulation (DPOR) oversees eighteen regulatory boards, the members of

which are appointed by the governor. DPOR sets regulatory policy,

administers regulations, provides staff support for the various

boards,

and serves as a liaison between the boards and the governor.

McCrerey had been DPOR's Administrator for Regulatory Programs

for two and a half years when she was fired in July 1994 by Ray

Allen, who had recently been appointed director of DPOR. A new

position of Chief Deputy Director was then created and posted, but

McCrerey was not one of the two people interviewed for the

position.

Instead, the job went to Jack Kotvas, who had been active in the

campaign of the then recently elected Republican governor. McCrerey is

not active in any political party.

McCrerey sued, claiming that her termination and Kotvas's hiring

were politically motivated. In ruling on the defendants' motion for

summary judgment, the district court assumed the claimed political

2
motive behind both of the job decisions. However, the court also

found that political affiliation was an "appropriate requirement"

for

the jobs in question and, therefore, that the patronage employment

decisions at issue were not unlawful under the Elrod-Branti

doctrine.1

McCrerey v. Allen, 925 F.Supp. 1123 (E.D. Va. 1996). McCrerey

appealed.2

Notwithstanding Allen's and Kotvas's arguments, both below and

on appeal, that the disputed personnel decisions were based on

merit,

we agree with the district court that it must be assumed for

summary

judgment purposes that McCrerey's lack of Republican Party affiliation was a significant factor in both employment decisions. See id.

at

1135-36. In accordance with Branti, 445 U.S. at 518, the district

court

shifted its focus to whether the State had met its burden of demonstrating that political affiliation was an "appropriate requirement

for

the effective performance" of the positions at issue and decided

that

the burden had been met. 925 F.Supp. at 1136.

Except for some isolated statements in the "Statement of Facts"

section of her opening brief, McCrerey has made no effort to

explain

why political affiliation might not be an "appropriate requirement"

for

either position, and she does not argue on appeal that the district

court

erred in finding that the two positions in question"involve[d]

issues

on which there is room for political disagreement on goals and

their

implementation." Id. Her only argument is that the State cannot on

the

one hand declare through its legislature that political

considerations

should not enter into personnel decisions about a given job, and

then,

on the other hand, violate that same law and be heard to argue

that,

as a matter of fact, political affiliation is indeed an

"appropriate

requirement" for that same job.

The district court considered the state law --"Although neither

state policy nor state law defining a position as requiring--or not

_________________________________________________________________

1 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S.
507

(1980).

2 The district court alternatively ruled that Allen and Kotvas were

entitled to qualified immunity. In light of our decision to affirm on

the

Elrod-Branti basis of the district court's decision, we do not

reach immunity issue.

3
requiring--partisan political affiliation controls the Elrod-Branti

analysis, it is a factor to consider in assessing whether a position is

within

the protective ambit of the doctrine" (925 F.Supp. at 1137

(citations

omitted)) -- but ruled that "the factors which the federal

constitutional analysis must take into account override the countervailing

influence of the state law and policy statements on which McCrerey

relies." Id. at 1139. However, McCrerey wants more than deference

or a presumption accorded the state anti-patronage law; she

contends

that the agency's violation of state law in her case effectively

precludes a judgment in the State's favor.

McCrerey explains that she does not mean to assert that "state law

is legally determinative, but that where state law unambiguously

renounces any relevant state interest, it leaves the State with an

insurmountable evidentiary hurdle." Appellant's brief at 24 n.5

(emphasis

in original). This evidentiary slant was apparently not articulated

as

such below, although the district court culled an analogous

contention

from McCrerey's opposition to the summary judgment motion: "Although not articulated in this form, the result sought by McCrerey

perhaps is that the defendants are estopped from claiming the

protection of the Elrod-Branti doctrine because of the provision of state

law

and the policies cited earlier . . . ." 925 F.Supp. at 1138 n. 8.

However

the argument is characterized, its core is the same-- when the

State

has specifically determined that political affiliation may not be

considered with regard to a given job or class of jobs, then state law

does

indeed effectively control the First Amendment issue.3 We agree

with

the district court that state law cannot control the analysis

because

"the content and scope of federal constitutional rights are matters

of

federal constitutional law." Id. at n. 7. _________________________________________________________________

3 "In making a patronage-based decision against McCrerey in open

violation of Virginia law, the Defendant/Appellees forfeited whatever

claim
to the Elrod-Branti exception they might otherwise have made"

(appellant's brief at 20); "[The State] is foreclosed by its own binding

state policies from meeting its evidentiary burden of demonstrating a

compelling,

countervailing state interest to offset McCrerey's First Amendment

right" (appellant's brief at 22) (emphasis in original); "The State

simply

can not meet its burden to establish an interest that outweighs

McCrerey's First Amendment rights when state law specifically

renounces any such interest" (appellant's brief at 24).

4
The role of state law in the Elrod-Branti analysis has not been

explained with a great degree of precision. Compare Stott v.

Haworth, 916 F.2d 134, 142 (4th Cir. 1990) (noting that a state law making

certain positions exempt from civil service protection"create[d] a

presumption at law that discharge or demotion was proper" (citing

Savage v. Gorski, 850 F.2d 64, 69 (2d Cir. 1988)), with Akers v.

Caperton, 998 F.2d 220, 225 n.7 (4th Cir. 1993) (noting, in a case

involving a state statute that specifically provided that political

affiliation was an important requirement for the position of highway

superintendent, that "legislative findings are given deference"). State

lawmakers, who are quite capable of enacting patronage-influenced

employment statutes, cannot supplant the Elrod-Branti doctrine. We

find no basis for establishing a per se or"absolute deference" rule

when the disputed employment decision conflicts with the state's

legislative determination. See Rouse v. Nielson, 851 F.Supp. 717,

723-24

(D.S.C. 1994) (rejecting argument that anti-patronage statute be

given

"absolute deference").

The district court correctly noted, and we now emphasize, that

whether a patronage-based dismissal violates the First Amendment is

ultimately a question of federal law. We reject McCrerey's

invitation

to establish a different rule where anti-patronage statutes are

involved.

AFFIRMED

5