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w . v i l l a no v a . e du/thir dc ir c uit_2013/1582NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________ No. 13

- 1587

_ ________ RICHARD WREN

v. COUNTY OF LUZERNE; MARYANNE C . PETRILLA; STEPHEN A. URBAN Maryanne C. Petrilla; Stephen A. Urban, Appellants

_____________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 11

- cv - 01769) District Judge: Honorable Richard P. Conaboy

_______ Argued: October 29, 2013 Before: MCKEE, CHIEF JUDG E , FISHER , and SLOVITER , Circuit Judges (Filed : December 13, 2013 )
Kimberly D. Borland (ARGUED) Borland & Borland 69 Public Square 11 th Floor Wilkes

- Barre, PA 18701 Counsel for Appellee Richard Wren2

Mark W. Bufalino John G. Dean Joseph J. Joyce, III (ARGUED) Ellio tt Greenleaf & Dean 39 Public Square Suite 1000 Wilkes

- Barre, PA 18701 Counsel for Appellants Maryanne C. Petrilla & Stephen A. Urban

______________ O P I N I O N

_______________ S LOVITER, Circuit Judge

. Richard Wren, who was employed as the Director o f Veterans’ Affa irs of Luzerne
C ounty beginning in 2 005 , was fired on September 24, 2009 by the votes of C ounty C ommissioner s Maryanne C. Petrill a and Stephen A. Urban

. Wren brings this suit against , inter alia, Petrilla and Urban , allegi ng that he was un lawfully terminated in violation of his First Amendment rights , as annunciated in Branti v. Finkel , 445 U.S. 507 (1 980) , and Elrod v. Burns , 427 U.S. 347 (1976)

. Petrilla and Urban appeal the District Court’s partial denial of their motion for summary ju dgment , asserting that this court has appellate jurisdiction over this interlocutory matter and that they are entitled to the defens e of qualified immunity. We will not reach the second issue because we conclude that we do no t have jurisdiction to decide the matter

. 1
The Branti

- Elrod line of cases established that dismissals on the basis of political association are a violation of the First Amendment. There is an exception for the

1 The District Court had jurisdiction over Wren’s 42 U.S.C. § 1983 claim pursuant to 28 U.S.C. § 133 1.3

dismissal of an employee who held a “policymaking” position, Elrod , 427 U.S. at 3 67

- 68 , but that exception is a narrow one . See, e.g. , Assaf v. Fields , 178 F.3d 170, 177 (3d Cir. 1999); Burns v. Cnty. of Cambria , 971 F.2d 1015 , 1023 (3d Cir. 1992). The exception applies when “‘ the hiring authority can demonstrate that part y affiliation is an appropriate requirement for the effective performance of the public office involved. ’ ” See Assaf

, 178 F.3d at 17 5 ( quoting Branti , 445 U.S. at 518)

. In the qualified immunity context, that showing depends upon whether a reasonable off icial , in the same position , would have been aware that his or her actions violated a clear constitutional right. See Anderson v. Creighton , 483 U.S. 635, 640 (1987). This determination is fact

specific, dependent on whether the right at issue was clearl y established. See Assaf , 178 F.3d at 177. In this case, t he parties dispute whether Wren’s constitutional right was clearly established. T h at determination requires a full assessment of what it was that Wren did in his position.
A decision denying summary judgment on the defense of qualified immunity is

c onside red to be a final judgment immediately appealable under the collateral order doctrine, to the extent that the denial turns on an issue of law

. S ee McKee v. Hart , 436 F.3d 165 , 168

- 69 (3d Cir. 2006)

. However, a n app ellate court lacks jurisdiction when an interlocutory appeal turns on issues of fact. Forbes v. Twp. of Lower Merion , 313 F.3d 144, 147

- 48 (3d Cir. 2002) (citing Johnson v. Jones , 515 U.S. 304, 313

- 16 ( 1995))

. The District Court d enied in part defendants’ motion for summary judgment on the ground that material facts are in dispute , and it cannot be said , as a matter of law , that the position of Director of Veterans’ Affairs is one for which political affiliation is an4

appropriate r equirement. As Director of Veterans’ Affairs, Wren was responsible for the management of the veterans’ affairs office, ensuring compliance with federal, state, and county veterans’ benefits, supervising the processing of applications for benefits,
attendi ng meetings and conferences on veterans’ benefits, visiting veterans’ medical hospitals and nursing homes, and ordering flags for distribution to county veterans’ organizations for placement on veterans’ gravesites, see 16 Pa. Cons. Stat. § 1922 (2008).
W e held in Boyle v. C ou nty of Allegheny , 139 F.3d 386, 397

- 99 (3d Cir. 1998) , that testimony by the relevant hiring authority that political affiliation is not an appropriate requirement for a particular office is evidence probative of whether the authori ty can make the showing required by Branti

. Here , Petrilla testified that she did not consider political affiliation an appropriate requirement for Wren’s position

— and none of the Commissioners testified otherwise

— a fact the Dis trict Court found compellin g. Although Wren advised the County Commissioners concerning veterans’ issues, which may be considered a political function , he had no input into decisions to hire or fire employees in his office, which suggests a limited scope of authority. In light of this record, we cannot conclude as matter of law that the position of Director of Veterans’ Affairs fell within the Branti

- Elrod exception. B ecause we do not have an undisputed record of what Wren did in his position, we a gree with the District Court that
this case is not appropriate for summary judgment at this time

. Petrilla and Urban contend that this case is controlled by Waskovich v. Morgano , 2 F.3d 1292 (3d Cir. 1993) , where we found that the po sition of Director of Veterans’ Administrative Services for the State of New Jersey fell within the Branti

- Elrod5

exception. As the District Court noted, the facts in Waskovich differ considerably from those here . Waskovich had significant policymaking authority in his position, and was involved in policy mat ters on a day

- to

- day basis. The degree to which Wren was involved in policymaking on a day

- to

- day basis is in dispute. Despite the superficial similarit y in that Wren l ike Waskovich, “orchestrate[d] the provision of veterans’ services, ” the scope of Wre n’s responsibility appears much narrower and of a more administrative chara cter than the scope of Waskovich’s responsibilities . Thus, we find defendants’ reliance on Waskovich unconvincing. Therefore, bec ause reviewing the District Court’s partial deni al of the motion for summary judgment turns on disputed issues of fact , this court is without jurisdiction and the appeal shall be accordingly dismissed

.