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

2motive 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
summaryjudgment 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
courtshifted 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 wereentitled to qualified immunity. In light of our decision to affirm on the Elrod-Branti basis of the district court's decision, we do notreach immunity issue.

3requiring--partisan political affiliation controls the Elrod-Brantianalysis, 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 federalconstitutional 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 aninsurmountable 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 contentionfrom 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 theprotection 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 openviolation of Virginia law, the Defendant/Appellees forfeited whatever claimto the Elrod-Branti exception they might otherwise have made"(appellant's brief at 20); "[The State] is foreclosed by its own bindingstate 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).

4The 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 politicalaffiliation 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'slegislative 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

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