1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-1999

Assaf v. Fields

Precedential or Non-Precedential:

Docket 98-7153

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Recommended Citation

"Assaf v. Fields" (1999). 1999 Decisions. Paper 137.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/137
Filed May 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-7153 

EUGENE F. ASSAF, 

 Appellant 

v. 

GEORGE C. FIELDS; GARY E. CROWELL 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. No. 97-cv-00343) 

District Judge: Hon. William W. Caldwell 

Argued: December 14, 1998 

Before: SLOVITER and COWEN, Circuit Judges, 

and OBERDORFER,* District Judge 

(Filed May 19, 1999) 

Lawrence S. Markowitz (Argued) 

Markowitz & Krevsky 

York, PA 17405 

 Attorney for Appellant 

_________________________________________________________________ 

*Hon. Louis F. Oberdorfer, United States District Judge for the District 

of Columbia, sitting by designation. 
 D. Michael Fisher 

 Attorney General 

 R. Douglas Sherman 

 Calvin R. Koons (Argued) 

 Senior Deputy Attorneys General 

 John G. Knorr, III 

 Chief Deputy Attorney General 

 Appellate Section 

 Office of Attorney General 

 of Pennsylvania 

 Harrisburg, PA 17120 

 Attorneys for Appellees 

OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

I. 

Plaintiff Eugene F. Assaf brought this civil rights action 

against the Pennsylvania state officials responsible for his 

dismissal from public employment. Assaf's complaint, 

invoking 42 U.S.C. S 1983, charges that appellees George C. 

Fields and Gary E. Crowell terminated his employment for 

political reasons, thereby violating the First Amendment 

protections for belief and association. The District Court, in 

ruling on the defendants' motion for summary judgment, 

concluded that Assaf 's job was not one for which party 

affiliation is an appropriate requirement but nonetheless 

entered summary judgment for defendants on the basis of 

qualified immunity. Assaf v. Fields, 999 F. Supp. 622, 630- 

33 (M.D.Pa. 1998). Assaf filed a timely appeal. Our review 

of the grant of summary judgment is plenary. See Boyle v. 

County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d 

Cir. 1998). 

II. 

The record, reviewed in a light favorable to Assaf, reveals 

the following: Assaf was hired in October 1988 as Director 

 2 
of the Bureau of Vehicle Management for the 

Commonwealth of Pennsylvania. Assaf, a registered 

Democrat, was hired by then-Secretary of General Services 

David Jannetta, who was also a registered Democrat. At the 

time Assaf was hired, Robert Casey, also a Democrat, was 

Governor of Pennsylvania. 

The Bureau of Vehicle Management is an agency within 

the Department of General Services. Assaf reported to the 

Deputy Secretary for Procurement, appellee George Fields. 

Fields in turn reported to the Director of the Department of 

General Services, appellee Gary Crowell. Crowell's position 

was a cabinet-level one. 

Assaf was advised in writing of his employment as a Fleet 

Maintenance Manager (also referred to as Director of the 

Bureau of Vehicle Management) and that his position was 

under the Senior Management Service, a category of 

Commonwealth positions "in the unclassified service which 

have broad policy participation and management 

responsibility." As such, he was exempt from 

unemployment compensation coverage but covered by the 

Management Benefits Program. He was further advised that 

in that position he "serve[s] at the pleasure of the agency 

head." 

Assaf 's job description listed as "Major Duties" of the 

position: "Directs the Bureau of Vehicle Management to 

meet the transportation needs of all requesting 

Commonwealth Departments, Agencies, and Commissions

while remaining within the financial guidelines of selfgenerated income." The job description enumerated ten 

specific duties: 

 1. Participates with the Deputy Secretary in planning, 

 developing and implementing appropriate standards, 

 procedures and policies for obtaining and maintaining 

 the Commonwealth Automotive Fleet. 

 2. Stays abreast of the automobile market and 

 recommends when to purchase vehicles based on 

 current sales volume, amount of income received,fixed 

 and semi-fixed expenses, variable expense, andfixed 

 overhead expense. 

 3 
 3. Determines the best type of vehicles to purchase. 

 . . . 

 4. Directs the operation of the Commonwealth Garage 

 concerned with the service and repair of the automotive 

 fleet. Negotiates and administers regular maintenance 

 contracts with service Agencies and with dealerships 

 for repair and preventative maintenance. 

 5. Directs the maintenance of all records and reports 

 concerning the Commonwealth Fleet. . . . 

 6. Oversees the disposition of the Commonwealth 

 owned vehicles. These vehicles are sold through an oral 

 auction which is open to the public. Makes sure that 

 all activities are carried out according to approved 

 policy. Interacts with the general public whenever 

 concerns arise. 

 7. Directs the payments of repair invoices from 

 various vendors. . . . 

 8. Oversees the repair of vehicles at the 

 Commonwealth Garage. . . . 

 9. Directs the temporary vehicle fleet making it 

 available for use by the requesting Commonwealth 

 Agencies to meet their temporary transportation needs. 

 . . . 

 10. Works closely with the various Bureau Chiefs and 

 supervisory personnel to maintain an efficient, logical 

 and financially sound operation. 

Assaf supervised the three divisions that made up the 

Bureau: the Administrative Division, the Vehicle Operations 

Division, and the Vehicle Maintenance Division. He directly 

supervised the three employees who headed these divisions. 

The Bureau as a whole employed a total of thirty-three to 

forty-six employees over whom Assaf exercised indirect 

supervision. His starting salary was $37,000 and at the 

time he was terminated his salary had risen to $52,000. 

From the written description, it might have appeared that 

Assaf 's title as Director signified a public official with 

significant authority. Admittedly, the Director ran the dayto-day operation of the Bureau, which entailed overseeing a 

 4 
fleet of approximately 8,000 vehicles. However, Assaf 

testified to the substantial limits of his authority. For 

example, the Director did not have the ultimate authority to 

hire employees within the Bureau. See Assaf at 50.1 There 

is evidence that he also did not have the authority to fire 

Bureau employees. See James W. Martin at 31; Gregory 

Green at 8-9. Rather, such authority rested ultimately with 

the Deputy Secretary for Procurement, a position held by 

Fields. See Green at 9. At most, Assaf could formally 

reprimand employees who were under his indirect 

supervision, which he did on a number of occasions. See 

Assaf at 57-60. 

Assaf testified that he had no authority over the Bureau's 

budget or purchasing decisions and did not negotiate 

maintenance contracts with outside vendors. See Assaf at 

39, 41, 44. Although Assaf assigned vehicles to the various 

agencies, Fields had to approve each such decision and 

Fields retained control over executive vehicle assignments. 

See Fields at 65-66. Maintenance of the Commonwealth 

vehicles was performed at the Commonwealth Garage, and 

although Assaf could approve outside repair shops if they 

accepted the standard contract from the Commonwealth, 

the rates for payment were set according to a 

predetermined formula. See Assaf at 43-44; Fields at 61. 

Similarly, although Assaf was listed as having 

responsibility for auctions, in fact the vehicle auctions were 

conducted pursuant to a formula used to select the 

vehicles, and vehicles could not be auctioned unless Fields 

approved the lists. The target prices for the vehicles at 

auction were also set by a formula, see Fields at 62-63, and 

the formula preceded Assaf's tenure, see Assaf at 60. 

On January 21, 1995, Thomas Ridge, a Republican, was 

sworn in as Governor of the Commonwealth of 

Pennsylvania. Shortly after Governor Ridge's inauguration, 

Jannetta resigned as Secretary of General Services and 

Governor Ridge appointed Gary Crowell, a Republican, in 

_________________________________________________________________ 

1. Throughout this opinion all citations to deposition testimony will be 

referenced by the name of the deponent followed by the page number of 

the transcript. 

 5 
his stead. Governor Ridge reappointed Fields as Deputy 

Secretary for Procurement. 

On March 29, 1995, Fields notified Assaf by letter that 

his services were no longer needed. Fields at 44. The 

termination decision was made by Secretary Crowell.

Crowell at 22-23. According to Assaf, Fields informed him 

that his termination was for political reasons. See Assaf at 

76-77. Fields denies discussing with Assaf whether politics 

were involved. See Fields at 44. 

Assaf applied for unemployment compensation pursuant 

to the Pennsylvania Unemployment Compensation Law. His 

application was ultimately denied by the Pennsylvania 

Unemployment Board of Review, which ruled that Assaf 

was not entitled to benefits because his was "a major nontenured policymaking" position and therefore specifically 

exempted from the unemployment compensation scheme.

On March 5, 1997, Assaf filed this lawsuit in the District 

Court for the Middle District of Pennsylvania, charging that 

Fields and Crowell violated the First Amendment by 

terminating his employment for political reasons. Fields 

and Crowell moved for summary judgment. Without 

conceding that Assaf had in fact been fired for political 

reasons, they urged that Assaf's job was, in any event, not 

one for which the First Amendment provides protection. In 

the alternative, they argued that even if Assaf 's position 

was constitutionally protected they were nonetheless 

entitled to qualified immunity because the unlawfulness of 

the dismissal would not have been apparent to reasonable 

officials under clearly established law. 

In ruling on the defendants' motion, the District Court 

first rejected the defendants' argument that Assaf had 

received the position through political patronage and could 

not now complain that he lost the position for a similar 

reason. See Assaf, 999 F. Supp. at 628 (citing Branti v. 

Finkel, 445 U.S. 507, 512 n.6 (1980) (rejecting argument 

that "because the [employees] knew the system was a

patronage system when they were hired, they did not have 

a reasonable expectation of being rejected when control of 

the office shifted to [another party].")). The court next 

rejected defendants' argument that political affiliation was 

 6 
a qualification for the job. The court noted that"the 

overarching factor is whether the worker has `meaningful 

input into decision making concerning the nature and 

scope of a major [government] program.' " Id. at 630 (citing 

Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d 

Cir. 1994)). The District Court concluded that "overseeing 

the cars owned by the Commonwealth and used by its 

agencies . . . is not a major government program . .. [as it 

does not] involve services to the general public or to a 

sizable portion of the public." Id. The court thus ruled that 

Assaf was entitled to First Amendment protection from 

political discharge. Nonetheless, it held that the defendants 

were entitled to qualified immunity because it was not 

clearly established that Assaf could not be fired for political 

reasons. See id. at 633. 

III. 

Summary judgment is appropriate only if the record 

discloses that "there is no genuine issue as to any material 

fact and the moving party is entitled to a judgment as a 

matter of law." Fed. R. Civ. P. 56(c). The record is to be 

examined in a light most favorable to the non-movant, in 

this case, Assaf. See Peters v. Delaware River Port Auth., 16 

F.3d 1346, 1349 (3d Cir. 1994). 

At the outset, we note that the only issue before us on 

this appeal is the propriety of the District Court's ruling 

that Fields and Crowell were entitled to qualified immunity. 

Although much of appellees' brief appears directed to the 

question of whether Assaf's position was "inherently 

political," Appellees' Br. at 25, the appellees have neither 

cross-appealed the ruling on that issue nor have they 

included this as one of their issues on appeal. Accordingly, 

we will focus on the District Court's determination that 

under clearly established law, reasonable officials would not 

have perceived that terminating Assaf for political reasons 

was unconstitutional. This necessarily requires that we 

review the applicable law, with particular attention to the 

dates the leading opinions were announced. 

In Siegert v. Gilley, 500 U.S. 226, 231 (1991), the

Supreme Court explained that "the proper analytical

 7 
framework" for addressing qualified immunity claims is to 

ascertain first whether plaintiff's claims make out a 

violation of a constitutional right. See also Brown v. 

Grabowski, 922 F.2d 1097, 1110 (3d Cir. 1990). Only if 

such a violation has been alleged need we proceed to 

determine whether, in the light of "clearly established law," 

the unlawfulness of the action would have been apparent to 

a reasonable official. See Siegert, 500 U.S. at 232 ("A 

necessary concomitant to the determination of whether the 

constitutional right asserted by the plaintiff is `clearly 

established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a 

violation of a constitutional right at all."); County of 

Sacramento v. Lewis, 523 U.S. 833, ____ n.5, 118 S. Ct. 

1708, 1714 n.5 (1998) ("As in any action under S 1983, the 

first step is to identify the exact contours of the underlying 

right said to have been violated."). 

The Supreme Court first established the proposition that 

as a general matter, a public employer cannot, consistently 

with the First Amendment, terminate a public employee for 

political reasons in Elrod v. Burns, 427 U.S. 347 (1976). In 

writing for a three-Justice plurality, Justice Brennan 

reasoned that because requiring financial and campaign 

assistance to the favored political party "is tantamount to 

coerced belief " and a required pledge of allegiance 

"compromise[s] the individual's true beliefs," id. at 355, it 

follows that "the practice of patronage dismissals clearly 

infringes First Amendment interests," id. at 360. He also 

reasoned that conditioning public employment on 

patronage support "inhibits protected belief and 

association." Id. at 359 (citing, inter alia, Perry v. 

Sindermann, 408 U.S. 593 (1972)). 

He recognized that the prohibition was not absolute, but 

allowed an exception only for those in "policymaking" 

positions "to insure that policies which the electorate has 

sanctioned are effectively implemented." Id. at 372. The 

plurality opinion states that "[i]n determining whether an 

employee occupies a policymaking position, consideration 

should . . . be given to whether the employee acts as an 

adviser or formulates plans for the implementation of broad 

goals." Id. at 368. The Court concluded, however, that the 

 8 
employees whose terminations were at issue in Elrod, (the 

chief deputy of the process division of a sheriff's office, a 

process server, a process division employee, and a bailiff 

and security guard at a county juvenile court) did not fall 

within the exception. 

The concurring opinion, written by Justice Stewart on 

behalf of himself and one other Justice, declined to 

comment on the first of the plurality's two rationales (that 

a patronage system tended to coerce employees into 

compromising their true beliefs) but agreed with the second 

rationale, i.e. that patronage dismissals effectively imposed 

an unconstitutional condition on the receipt of a public 

benefit. The two concurring Justices also agreed that the 

Elrod plaintiffs did not fall within the class of employees 

with "policymaking" responsibilities who were exempted 

from First Amendment protection. See id. at 374-75.

Four years later, in Branti v. Finkel, 445 U.S. 507 (1980), 

a firm majority of the Court, this time speaking through 

Justice Stevens, reiterated that the First Amendment 

prohibits discharge of public employees for their party 

affiliation. In Branti, the Court addressed the district 

court's conclusion, affirmed by the court of appeals, that 

assistant public defenders were not the type of 

policymaking, confidential employees exempted from the 

general prohibition on politically motivated dismissals. The 

Court eschewed overreliance on labels such as 

"confidential" or "policymaking" and stated that "[i]n sum, 

the ultimate inquiry is not whether the label `policymaker' 

or `confidential' fits a particular position; rather, the 

question is whether the hiring authority can demonstrate 

that party affiliation is an appropriate requirement for the 

effective performance of the public office involved." Id. at 

518. Applying this standard, the Court agreed that 

assistant public defenders did not fall within the exception 

to the general prohibition against politically motivated 

dismissals from public employment. See id. at 520. 

The Branti-Elrod decisions were widely publicized, 

particularly among officials in positions in state and local 

governments who have authority to hire and fire 

government employees. It is reflective of this general 

knowledge that Fields and Crowell do not contend that they 

 9 
were unaware of the severe limitation that was now placed 

on terminations because of political affiliation. All that 

remained after Branti-Elrod was the application of the 

principle to the positions of the plaintiffs who brought suit. 

Illustrations were soon forthcoming from all the circuits. 

This court applied and elaborated on the principles

enunciated in Elrod and Branti in a series of cases decided 

over the last eighteen years. The year after the Branti 

decision, we stated in Ness v. Marshall, 660 F.2d 517, 521 

(3d Cir. 1981), that the Court's opinion calls for a 

"functional analysis," which entails an examination of 

whether "a difference in party affiliation[would] be highly 

likely to cause an official to be ineffective in carrying out 

the duties and responsibilities of the office," in which case 

a dismissal for political reasons "would not offend the First 

Amendment." We noted that the Elrod plurality suggested 

that "employees who act as advisers, who formulate plans 

for implementing broad goals, or whose responsibilities are 

either not well defined or of broad scope are more likely to 

function as policymakers." Id. at 520 (citing Elrod, 427 U.S. 

at 367-68). Because the duties of the plaintiffs in Ness, the 

city solicitor and assistant city solicitors of York, 

Pennsylvania, included "rendering legal opinions, drafting 

ordinances, [and] negotiating contracts" for the city, which 

we concluded were "intimately related to city policy," we 

held that party affiliation was an "appropriate (even if not 

necessary) requirement" for their effective performance. Id. 

at 522. 

Again, in Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), 

we held that the Assistant Director of Public Information for 

a Pennsylvania county could be dismissed on account of 

her political affiliation because her "position is one which 

cannot be performed effectively except by someone who 

shares the political beliefs of the Commissioners." Id. at 

170. Although we reversed judgment for the defendants 

because Brown had not been given a pretermination 

hearing, we used that decision as a vehicle to "specif[y] the 

factors that indicate that a position falls within the Branti 

test." Id. at 169. Looking to cases decided by other courts, 

we identified as relevant "whether the employee's duties are 

simply clerical or related to law enforcement" or 

 10 
"nondiscretionary or technical," "whether the employee 

participates in Council discussions or other meetings, 

whether the employee prepares budgets or has authority to 

hire or fire employees, the salary of the employee, and the 

employee's power to control others and to speak in the 

name of policymakers." Id. (citations omitted). 

After reviewing these considerations, we concluded that 

the "key factor seems to be not whether the employee was 

a supervisor or had a great deal of responsibility but 

whether the employee has `meaningful input into 

decisionmaking concerning the nature and scope of a major 

[government] program.' " Id. at 169-70 (quoting Nekolny v. 

Painter, 653 F.2d 1164 (7th Cir. 1981)). This factor was to 

be determinative in many of the cases we decided 

thereafter. 

In Zold v. Township of Mantua, 935 F.2d 633 (3d Cir. 

1991), we were called upon to decide whether the politically 

motivated discharge of a deputy municipal clerk violated 

the First Amendment. Synthesizing our case law on the 

subject, we stated that 

 the ultimate inquiry . . . is whether the hiring authority 

 can demonstrate that party affiliation is an appropriate 

 requirement for the effective performance of the 

 particular office involved. . . . [S]hould a difference in 

 party affiliation be highly likely to cause an official to 

 be ineffective in carrying out the duties and 

 responsibilities of the office, dismissals for that reason 

 would not offend the First Amendment. The burden of 

 proof is on the defendant to demonstrate an overriding 

 interest in order to validate an encroachment on an 

 employee's First Amendment rights. 

Id. at 635 (quotation marks and citations omitted). In light 

of these principles we concluded that the deputy municipal 

clerk--whose duties included "acting as (1) secretary to the 

governing body, (2) secretary of the municipal corporation, 

(3) election official and (4) administrative official on the 

municipal level," id. at 637--was not a position for which 

political firing was permissible. See id. at 640. 

In addition to holding the politically motivated discharges 

of the deputy clerk impermissible in Zold, we also found 

 11 
impermissible the discharge of a second deputy recorder of 

deeds, see Furlong v. Gudknecht, 808 F.2d 233, 238 (3d 

Cir. 1986); a deputy sheriff, see Burns v. County of 

Cambria, 971 F.2d 1015, 1022 (3d Cir. 1992); and a deputy 

director of marketing and communications for a county 

aviation department, see Boyle v. County of Allegheny 

Pennsylvania, 139 F.3d 386, 401 (3d Cir. 1998). On the 

other side of the line, we found that political affiliation was 

relevant for a director of a state agency concerned with the 

provision of veterans' benefits, see Waskovich v. Morgano, 2 

F.3d 1292, 1303 (3d Cir. 1993), a secretary of an interstate 

port authority, see Peters, 16 F.3d at 1359, as well as the 

county assistant director of public information referred to 

above, see Brown, 787 F.2d at 170. 

The District Court's conclusion that Assaf's position was 

not one for which political affiliation may be required was 

fully supported by the evidence submitted in connection 

with the summary judgment issue, as Assaf did not have 

significant input into a major government program within 

the contemplation of our case law. However, the District 

Court proceeded to hold that it was not clearly established 

that Assaf 's position was one for which political affiliation 

could not be required and that therefore the defendant 

officials were entitled to qualified immunity. It offered three 

rationales for this conclusion. 

The first was that "except for Waskovich, the existing 

Third Circuit precedent provided no guidance." Assaf, 999 

F. Supp. at 633. However, Waskovich itself emphasized the 

same factors identified in our prior cases: whether the 

employee had "meaningful input into decision making

concerning the nature and scope of a major [government] 

program." Waskovich, 2 F.3d at 1297 (quoting Brown, 787 

F.2d at 169-70). Instead, the District Court's analysis 

appears to require a closer factual correspondence between 

the case under examination and prior decided cases than is 

consistent with qualified immunity doctrine and its

application by this court. 

When deciding whether the law is clearly established, the 

Supreme Court has cautioned against looking at the 

constitutional issue too abstractly. Anderson v. Creighton, 

483 U.S. 635, 639 (1987). Rather, the right the official is 

 12 
alleged to have violated must have been `clearly established' 

in a more particularized, and hence more relevant, sense: 

The contours of the right must be sufficiently clear that a 

reasonable official would understand that what he is doing 

violates that right." Id. at 640. On the other hand, "This is 

not to say that an official action is protected by qualified 

immunity unless the very action in question has previously 

been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Id. 

(citation omitted). 

Given the nature of the inquiry in the Branti-Elrod cases, 

we reject appellees' argument that qualified immunity is 

"well suited to cases where there is no `bright line' rule." 

Appellees' Br. At 12. Were we to adopt this position, we 

would effectively eviscerate the constitutional imperative 

behind Branti-Elrod jurisprudence. Under the qualified 

immunity regime contemplated by appellees, liability in 

such areas could never attach because the lack of"bright 

line" rules inherent in the doctrine would continually 

provide cover for violations of constitutional rights. In an 

earlier case in which we rejected the defendants' qualified 

immunity claim, we explained that if we were to require 

" `precise factual correspondence' between the case at issue 

and a previous case . . . we would not be `faithful to the 

purposes of immunity by permitting . . . officials one 

liability-free violation of a constitutional or statutory 

requirement.' " Burns, 971 F.2d at 1024 (quoting People of 

Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d 

139, 144-45 (3d Cir. 1984)). 

Contrary to the District Court's assertion, our cases have 

given guidance to government officials within our circuit. 

An employee may be terminated for political reasons only if 

"a difference in party affiliation [is] highly likely to cause an 

official to be ineffective in carrying out the duties and 

responsibilities of the office," Waskovich, 2 F.3d at 1297 

(internal quotation marks omited), and that only if an 

employee's duties make it possible to cause "serious 

political embarrassment," id. at 1302, will the position meet 

the narrow Branti-Elrod exception. 

We have noted that the inquiry into the employee's duties 

is a "fact specific" one, id. at 1297 (quoting Zold, 935 F.2d 

 13 
at 635), and that although we look to "the functions of the 

public office in question and not the actual past duties of 

the particular employee involved," id. (quoting Brown, 787 

F.2d at 168) (alteration and internal quotation marks 

omitted) evidence of past job duties may be, and often is, 

informative, see Peters, 16 F.3d at 1353. 

Officials to whom this court applied the Branti-Elrod 

exception before Assaf 's termination, such as the director 

of an interstate port authority charged with, inter alia, the 

responsibility for developing a master economic plan for an 

interstate district, in Peters, 16 F.3d at 1354-55, the 

director of a state veteran's services agency responsible for 

overseeing the delivery of benefits and services to veterans, 

in Waskovich, 2 F.3d at 1297, and the secretary for a 

county's office of public information charged with duties 

such as "preparing and distributing press releases,

contacting media representatives, and promoting county 

projects," and who hence represented the county 

government to the public, in Brown, 787 F.2d at 168, were 

those with responsibility connected to major government 

programs. The common thread among them is that their 

positions related to the government's activity vis-a-vis the 

public. That is, these positions entail the formulation or 

implementation of policies that have a direct impact on the 

public or the representation of government policies to the 

public. 

By contrast, Assaf was charged with the responsibility of 

directing--within a very narrow compass of authority--an 

agency overseeing the Commonwealth's motor pool. While 

this is, to be sure, an important function, it is not a "major 

government program" in the sense that phrase is used in 

our case law. The acquisition, maintenance, and disposition 

of the Commonwealth's vehicles is a largely endogenous 

function of the state government and as such serves an 

internal and practical purpose--supplying vehicles to 

Commonwealth agencies and executives, maintaining these 

vehicles, and overseeing the purchase and sale of the 

vehicles. There is nothing in these functions that would 

lead a reasonable official to conclude that the Director of 

the Bureau of Vehicle Management made such politically 

sensitive policy judgments that the Director need have a 

 14 
common political philosophy with the incumbent political 

regime. 

Moreover, Assaf's position did not involve significant 

contact with the public. He did not represent the 

Commonwealth or speak in its name, and was thus unlike 

the plaintiff in Brown who "present[ed] the views of the 

[County] Commissioners to the press and public on a daily 

basis." 787 F.2d at 170. Assaf's only interaction with the 

public occurred at the auction of the surplus fleet vehicles, 

plainly not the type of public appearance that requires the 

employee to hew to a particular party's line. As the District 

Court noted, to the extent that this function involves 

interaction with the public, it is "a tiny segment of the 

public, who appear voluntarily for what is essentially a 

commercial transaction--the purchase of a car." Assaf, 999 

F. Supp. at 630. 

It should not have been difficult to see that far from 

representing the government, as was the plaintiff's duty in 

Brown, Assaf's public contact was much more like that at 

issue in Zold, where we found that political allegiance was 

not an appropriate criterion for the decision to terminate 

the plaintiff. In Zold, the public contact of the plaintiff, the 

deputy township clerk, was more extensive than Assaf's, 

involving as it did "informing reporters about the agenda of 

upcoming meetings and . . . receiving inquiries and

complaints from the electorate . . . and responding in kind." 

935 F.2d at 638 (citation and internal quotation marks 

omitted). 

We reject appellees' argument that our decision in 

Waskovich could have been understood by reasonable 

officials to render the political firing of Assaf lawful. The 

plaintiff in Waskovich was the former Director of the New 

Jersey Division of Veterans' Administrative Services, and as 

such was responsible for the administration of services and 

benefits to an estimated 900,000 veterans throughout the 

state. See Waskovich, 2 F.3d at 1302. Although Waskovich 

oversaw the day-to-day operations of veterans' facilities, he 

also advocated for the veterans that were in the state's care. 

See id. at 1300. We described his role as that of a

government official who "orchestrate[s] the provision of 

veteran services." Id. at 1302. In holding Waskovich's 

 15 
position exempt, we emphasized that Waskovich had 

significant policymaking authority with respect to this 

position, and that "he was involved in policy matters on a 

day-to-day basis, that he made recommendations on policy 

matters on several occasions, that his superiors asked for 

his views of major policy proposals such as capital

improvement programs, and that he often opposed policies 

they espoused." Id. at 1300. 

Assaf's position, on the other hand, concerns the 

administration of the state's fleet of vehicles. Without 

denigrating the importance of such a position, there is no 

reason to conclude that high state officials would have 

analogized Assaf's position to Waskovich's. In light of 

Assaf's lack of any significant contact with the public and 

the undisputed fact that Assaf's level of responsibility did 

not touch on politically sensitive issues, which would raise 

the likelihood of serious political embarrassment, no official 

cognizant of the existing precedents of this court could have 

concluded that the modest managerial responsibilities over 

the Commonwealth agencies' fleet of cars would constitute 

meaningful input into a major government program. 

The second reason given by the District Court for its 

qualified immunity decision was that Assaf's status as 

"middle management" made it objectively reasonable for 

appellees to believe that his position was subject to 

patronage dismissal. Nothing in this circuit's precedents 

suggests that middle managers qua middle managers are 

more likely to fall within the exception than other types of 

employees. In fact, not one of our Branti-Elrod decisions 

even mentions the term "middle management" or"middle 

manager." To the contrary, as we observed in Brown,

managerial or supervisory authority, by itself, does not 

suffice to bring a position within the Branti-Elrod exception. 

See Brown, 787 F.2d at 169-70. In short, to label someone 

a middle manager says nothing about whether or not that 

person has significant policy-making responsibilities that 

make adherence to the incumbent party's political 

philosophy a necessary job requirement. 

In a similar vein, the District Court suggested that the 

division of authority between the Seventh Circuit in Selch v. 

Letts, 5 F.3d 1040 (7th Cir. 1993), and the Fourth Circuit 

 16 
in Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993),

supports the determination that it was unclear whether 

Assaf's duties were such that he was subject to patronage 

dismissal. These cases have little to say about the kind of 

position involved here, nor do they stand for the 

proposition, implicit in the District Court's analysis, that 

middle managers may be subject to political firing. Selch 

concerned the position of "subdistrict superintendent," a 

job that involved "plan[ning the] annual workload and 

determin[ing] resource requirements based upon that plan; 

--investigat[ing] and tak[ing] corrective action on

complaints and information requests from the general 

public; [and] --provid[ing] personal supervision, personnel, 

and equipment during emergencies, such as snow and ice 

removal, detours, accidents, and road repairs, etc." Id. at 

1044-45. Akers involved the holder of a similar job--that of 

"county maintenance superintendent." The Seventh Circuit 

in Selch held that the position was one for which patronage 

dismissal was constitutionally permissible; the Fourth in 

Akers had held the opposite. 

The Selch and Akers plaintiffs had a great deal of 

responsibility to decide how the physical maintenance of 

streets gets done, and, as is well known, local political 

regimes can stand or fall on the incumbents' ability to fix 

potholes and remove snow. In any event, those decisions 

from other circuits cannot reasonably have been relied on 

by officials in a state within this court's jurisdiction when 

this court has numerous opinions to serve as guidance on 

the subject. 

The final reason offered by the District Court in support 

of qualified immunity was the observation that"Assaf's 

duties were not merely technical, he participated in 

meetings, and he could control others." Assaf, 999 F. Supp. 

at 633. This description, however, could just as well apply 

to any public employee with a measure of supervisory 

responsibility. Although Assaf met with the Deputy 

Secretary every two weeks along with the other Bureau 

Directors, occasionally met with Fields alone, and on three 

occasions attended out-of-state programs held by the 

National Association of Fleet Administrators that 

highlighted products and involved discussions of fleet 

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management techniques, these functions say nothing 

significant about the extent to which his duties required 

that he have the same political affiliation as the incumbent 

regime. 

In his position as Director of the Bureau of Vehicle 

Management for the Commonwealth, Assaf had 

management responsibilities in three principal areas: (1) 

obtaining and maintaining the Commonwealth's fleet of 

vehicles; (2) directing the operation of the Commonwealth 

Garage (i.e., supervising the maintenance of the fleet); and 

(3) overseeing the disposition of Commonwealth-owned 

vehicles at auction. These duties do not involve matters 

that have an impact on the public nor does the Bureau 

Director represent the government in its interactions with 

the public. It would be manifestly unreasonable for officials 

to believe that such an intragovernmental operation as the 

management of the state's fleet of vehicles involves 

politically sensitive matters. 

Although Assaf's lack of input into a program that can 

be considered major is sufficient to establish that it should 

have been apparent to reasonable officials that his job was 

protected under the First Amendment, it should also have 

been known to his superiors that Assaf's level of 

responsibility within the Bureau was not very significant. In 

particular, the record suggests that Assaf did not enjoy the 

power to hire or fire employees, but only to reprimand 

them. He directly supervised only three employees. He 

oversaw the purchase of vehicles, but did not have 

authority to make purchasing decisions for the 

Commonwealth. He had no input into his budget. As 

Bureau Director, he managed the Commonwealth Garage, 

but had no authority to negotiate maintenance contracts 

with outside vendors. Assaf oversaw the administration of 

the auctions, but the selection of cars and the target prices 

to be achieved at auction were set by formula, not 

according to the Director's initiative. Although Assaf 

instituted a set of procedures for the conduct of the auction 

when he learned of dissatisfaction with the auction process, 

the minor nature of the changes, i.e. changing the process 

for counting money, installing a locking door on the auction 

stage, and attempting to ensure that the target prices were 

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obtained, see Assaf at 93-95, show the technical nature of 

his input. 

Appellees make much of the fact that Assaf forwarded to 

Fields a suggestion for altering the formula for calculating 

the labor rates for maintenance contracts (a suggestion 

ultimately adopted by Fields), but we do not find in this 

event an indicium of "significant input into broad goals" 

sufficient to support qualified immunity. Leaving aside the 

fact that the suggestion was not, in the first instance, the 

product of any initiative on Assaf's part, the narrow ambit 

of the suggestion and the fact that it was up to Fields to 

make the ultimate decision as to whether it would be 

implemented further suggest that such "broad goals" as the 

Bureau may have had were firmly in the control of Fields, 

not Assaf. As the District Court aptly summed up, "the 

plaintiff ran the day-to-day operation of the Bureau, but 

Fields kept a `tight rein.' " Assaf, 999 F. Supp. at 626. 

In an earlier Branti-Elrod case, we rejected the 

defendants' contention that the right at issue was not 

clearly established, stating that "we are satisfied that the 

decisions of this court have been sufficiently consistent to 

have clearly established to all state and municipal

employers that firing or other adverse employment action 

for political reasons contravenes the Constitution unless 

defendants could show that the particular position came 

within the narrow exception." Burns, 971 F.2d at 1024. 

That conclusion is just as applicable here. Here, as in 

Burns, the defendants "should have related this established 

law to the instant situation." Id. at 1025, (quoting Hicks v. 

Feeney, 770 F.2d 375, 380 (3d Cir. 1985) (internal 

quotation marks omitted)). 

The nature and limits of Assaf's responsibilities and 

authority were not unknown to defendants Fields and

Crowell. After all, it was Fields to whom Assaf directly 

reported, and Fields in turn reported to Crowell. In fact, 

Crowell who, as the Secretary of General Services, was 

responsible for Assaf's termination, testified at his 

deposition that party affiliation was not an appropriate 

requirement for the job. See Crowell at 61. In Burns, we 

saw no reason why any "reasonable employer" would have 

thought that the employee "could be fired for political 

 19 
reasons." Burns, 971 F.2d at 1024. Any hypothetical

reasonable official should have known that the limited 

nature of Assaf's authority would place his position in line 

with those that we held were protected by the First

Amendment in Zold (deputy municipal clerk who ran dayto-day functions of the clerk's office), Furlong (second 

deputy recorder of deeds, who satisfied mortgages, recorded 

documents and forwarded taxes to the relevant authorities), 

and Burns (deputy sheriff who was responsible for serving 

process, transporting prisoners, and guarding courtrooms). 

Consequently, we hold that a reasonable official would 

not have concluded under clearly established law that 

political loyalty could be required for Assaf's position. 

IV. 

For the reasons set forth, we will reverse the decision of 

the District Court granting summary judgment to 

defendants on the ground that they have qualified 

immunity. As the defendants have argued that they did not 

dismiss Assaf for political reasons, we will remand for 

further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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