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. e du/thir dc ir c uit_1999/137Filed 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 J udge 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 responsibl e for his dismissal from public employment. Assaf's complaint

, invoking 42 U.S.C. S 1983, charges that appellees G eorge C. Fields and Gary E. Crowell terminated his employmen t for political reasons, thereby violating the First Amen dment protections for belief and association. The Distric t Court, in ruling on the defendants' motion for summary judgme nt, concluded that Assaf 's job was not one for which p arty affiliation is an appropriate requirement but nonet heless entered summary judgment for defendants on the basi s of qualified immunity. Assaf v. Fields, 999 F. Supp. 6 22, 630- 33 (M.D.Pa. 1998). Assaf filed a timely appeal. Our review of the grant of summary judgment is plenary. See Bo yle 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 D irector

2of the Bureau of Vehicle Management for the

Commonwealth of Pennsylvania. Assaf, a registered Democrat, was hired by then-Secretary of General Se rvices 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 withi n the Department of General Services. Assaf reported to the Deputy Secretary for Procurement, appellee George F ields. Fields in turn reported to the Director of the Depa rtment 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 o f 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 t he Management Benefits Program. He was further advised that in that position he "serve[s] at the pleasure of th e agency head."

Assaf 's job description listed as "Major Duties" o f 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 t en specific duties:

1. Participates with the Deputy Secretary in planning, developing and implementing appropriate stan dards, procedures and policies for obtaining and ma intaining

the Commonwealth Automotive Fleet.

2. Stays abreast of the automobile market an d recommends when to purchase vehicles based o n current sales volume, amount of income recei ved,fixed and semi-fixed expenses, variable expense, a ndfixed overhead expense.

33. Determines the best type of vehicles to p urchase.

. . .

4. Directs the operation of the Commonwealth Garage concerned with the service and repair of the automotive fleet. Negotiates and administers regular ma intenance contracts with service Agencies and with dea lerships for repair and preventative maintenance.

5. Directs the maintenance of all records an d reports concerning the Commonwealth Fleet. . . .

6. Oversees the disposition of the Commonwea lth

owned vehicles. These vehicles are sold thro ugh an oral auction which is open to the public. Makes s ure that all activities are carried out according to approved policy. Interacts with the general public wh enever concerns arise.

7. Directs the payments of repair invoices f rom various vendors. . . .

8. Oversees the repair of vehicles at the Commonwealth Garage. . . .

9. Directs the temporary vehicle fleet makin g it available for use by the requesting Commonwe alth Agencies to meet their temporary transportat ion needs.

. . .

10. Works closely with the various Bureau Ch iefs and supervisory personnel to maintain an efficie nt, logical and financially sound operation.

Assaf supervised the three divisions that made up t he Bureau: the Administrative Division, the Vehicle Op erations Division, and the Vehicle Maintenance Division. He directly supervised the three employees who headed these div isions. The Bureau as a whole employed a total of thirty-th ree to forty-six employees over whom Assaf exercised indir ect 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 appeare d that Assaf 's title as Director signified a public offic ial with significant authority. Admittedly, the Director ran the dayto-day operation of the Bureau, which entailed over seeing a

4fleet of approximately 8,000 vehicles. However, Ass af

testified to the substantial limits of his authorit y. For example, the Director did not have the ultimate aut hority 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; Gregor y Green at 8-9. Rather, such authority rested ultimat ely with the Deputy Secretary for Procurement, a position he ld by Fields. See Green at 9. At most, Assaf could formal ly 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 B ureau's budget or purchasing decisions and did not negotiat e maintenance contracts with outside vendors. See As saf 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 assi gnments.

See Fields at 65-66. Maintenance of the Commonwealt h vehicles was performed at the Commonwealth Garage, and although Assaf could approve outside repair shops i f they accepted the standard contract from the Commonwealt h, the rates for payment were set according to a predetermined formula. See Assaf at 43-44; Fields a t 61.

Similarly, although Assaf was listed as having responsibility for auctions, in fact the vehicle au ctions were conducted pursuant to a formula used to select the vehicles, and vehicles could not be auctioned unles s Fields approved the lists. The target prices for the vehic les at auction were also set by a formula, see Fields at 6 2-63, and the formula preceded Assaf's tenure, see Assaf at 6 0.

On January 21, 1995, Thomas Ridge, a Republican, wa s sworn in as Governor of the Commonwealth of Pennsylvania. Shortly after Governor Ridge's inaugu ration, Jannetta resigned as Secretary of General Services and Governor Ridge appointed Gary Crowell, a Republican , in

___________________________________________________ ______________

1. Throughout this opinion all citations to deposit ion testimony will be referenced by the name of the deponent followed by the page number of the transcript.

5his stead. Governor Ridge reappointed Fields as Dep uty

Secretary for Procurement.

On March 29, 1995, Fields notified Assaf by letter that his services were no longer needed. Fields at 44. T he termination decision was made by Secretary Crowell. Crowell at 22-23. According to Assaf, Fields inform ed 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 pursuan t to the Pennsylvania Unemployment Compensation Law. His application was ultimately denied by the Pennsylvan ia Unemployment Board of Review, which ruled that Assa f was not entitled to benefits because his was "a maj or nontenured policymaking" position and therefore specif ically exempted from the unemployment compensation scheme.

On March 5, 1997, Assaf filed this lawsuit in the D istrict Court for the Middle District of Pennsylvania, char ging that Fields and Crowell violated the First Amendment by terminating his employment for political reasons. F ields and Crowell moved for summary judgment. Without conceding that Assaf had in fact been fired for pol itical reasons, they urged that Assaf's job was, in any ev ent, not one for which the First Amendment provides protecti on. In the alternative, they argued that even if Assaf 's position was constitutionally protected they were nonetheles s entitled to qualified immunity because the unlawful ness of the dismissal would not have been apparent to reaso nable officials under clearly established law.

In ruling on the defendants' motion, the District C ourt first rejected the defendants' argument that Assaf had received the position through political patronage a nd could not now complain that he lost the position for a si milar reason. See Assaf, 999 F. Supp. at 628 (citing Bran ti v. Finkel, 445 U.S. 507, 512 n.6 (1980) (rejecting arg ument 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 con trol of the office shifted to [another party].")). The cour t next rejected defendants' argument that political affili ation was

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

overarching factor is whether the worker has `meani ngful input into decision making concerning the nature an d scope of a major [government] program.' " Id. at 63 0 (citing Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d Cir. 1994)). The District Court concluded that "ove rseeing 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 fr om 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 f or 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 i s to be examined in a light most favorable to the non-movan t, 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 u s 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 "inherentl y political," Appellees' Br. at 25, the appellees hav e neither cross-appealed the ruling on that issue nor have th ey included this as one of their issues on appeal. Acc ordingly,

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 tha t we review the applicable law, with particular attentio n 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

7framework" 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 t o determine whether, in the light of "clearly establi shed law," the unlawfulness of the action would have been appa rent to a reasonable official. See Siegert, 500 U.S. at 232 ("A necessary concomitant to the determination of wheth er 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."); Coun ty of Sacramento v. Lewis, 523 U.S. 833, ____ n.5, 118 S. Ct. 1708, 1714 n.5 (1998) ("As in any action under S 19 83, 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, cons istently with the First Amendment, terminate a public employ ee for political reasons in Elrod v. Burns, 427 U.S. 347 ( 1976). In writing for a three-Justice plurality, Justice Bren nan reasoned that because requiring financial and campa ign assistance to the favored political party "is tanta mount to coerced belief " and a required pledge of allegianc e "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. H e 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 "policymakin g" positions "to insure that policies which the electo rate has sanctioned are effectively implemented." Id. at 372 . The plurality opinion states that "[i]n determining whe ther an employee occupies a policymaking position, consider ation 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, t hat the

8employees 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 t o comment on the first of the plurality's two rationa les (that a patronage system tended to coerce employees into compromising their true beliefs) but agreed with th e second rationale, i.e. that patronage dismissals effective ly imposed an unconstitutional condition on the receipt of a p ublic benefit. The two concurring Justices also agreed th at the Elrod plaintiffs did not fall within the class of e mployees with "policymaking" responsibilities who were exemp ted 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 th rough Justice Stevens, reiterated that the First Amendmen t prohibits discharge of public employees for their p arty affiliation. In Branti, the Court addressed the dis trict court's conclusion, affirmed by the court of appeal s, that assistant public defenders were not the type of policymaking, confidential employees exempted from the general prohibition on politically motivated dismis sals. 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 `poli cymaker' or `confidential' fits a particular position; rathe r, the question is whether the hiring authority can demons trate that party affiliation is an appropriate requiremen t 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 moti vated 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 gene ral knowledge that Fields and Crowell do not contend th at they

9were unaware of the severe limitation that was now placed

on terminations because of political affiliation. A ll that remained after Branti-Elrod was the application of the principle to the positions of the plaintiffs who br ought suit.

Illustrations were soon forthcoming from all the ci rcuits. 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 Br anti decision, we stated in Ness v. Marshall, 660 F.2d 5 17, 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] b e highly likely to cause an official to be ineffective in ca rrying 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 sugge sted that "employees who act as advisers, who formulate plans for implementing broad goals, or whose responsibili ties 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 Yor k, Pennsylvania, included "rendering legal opinions, d rafting ordinances, [and] negotiating contracts" for the ci ty, which we concluded were "intimately related to city polic y," we held that party affiliation was an "appropriate (ev en if not necessary) requirement" for their effective perform ance. Id.

at 522.

Again, in Brown v. Trench, 787 F.2d 167 (3d Cir. 19 86),

we held that the Assistant Director of Public Infor mation 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 w ho shares the political beliefs of the Commissioners." Id. at 170. Although we reversed judgment for the defendan ts because Brown had not been given a pretermination hearing, we used that decision as a vehicle to "spe cif[y] the factors that indicate that a position falls within the Branti test." Id. at 169. Looking to cases decided by othe r courts, we identified as relevant "whether the employee's d uties are simply clerical or related to law enforcement" or

10"nondiscretionary or technical," "whether the emplo yee

participates in Council discussions or other meetin gs, whether the employee prepares budgets or has author ity 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 employe e 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 Nek olny v. Painter, 653 F.2d 1164 (7th Cir. 1981)). This facto r 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 po litically motivated discharge of a deputy municipal clerk vio lated the First Amendment. Synthesizing our case law on t he subject, we stated that

the ultimate inquiry . . . is whether the hi ring 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 an d responsibilities of the office, dismissals f or that reason

would not offend the First Amendment. The bu rden of proof is on the defendant to demonstrate an overriding

interest in order to validate an encroachmen t 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 mu nicipal clerk--whose duties included "acting as (1) secreta ry to the governing body, (2) secretary of the municipal corp oration, (3) election official and (4) administrative offici al on the municipal level," id. at 637--was not a position fo r which political firing was permissible. See id. at 640.

In addition to holding the politically motivated di scharges of the deputy clerk impermissible in Zold, we also found

11impermissible the discharge of a second deputy reco rder of

deeds, see Furlong v. Gudknecht, 808 F.2d 233, 238 (3d Cir. 1986); a deputy sheriff, see Burns v. County o f Cambria, 971 F.2d 1015, 1022 (3d Cir. 1992); and a deputy director of marketing and communications for a coun ty aviation department, see Boyle v. County of Alleghe ny Pennsylvania, 139 F.3d 386, 401 (3d Cir. 1998). On the other side of the line, we found that political aff iliation was relevant for a director of a state agency concerned with the provision of veterans' benefits, see Waskovich v. M organo, 2 F.3d 1292, 1303 (3d Cir. 1993), a secretary of an i nterstate port authority, see Peters, 16 F.3d at 1359, as wel l as the county assistant director of public information ref erred to above, see Brown, 787 F.2d at 170.

The District Court's conclusion that Assaf's positi on was not one for which political affiliation may be requ ired was fully supported by the evidence submitted in connec tion with the summary judgment issue, as Assaf did not h ave significant input into a major government program w ithin the contemplation of our case law. However, the Dis trict Court proceeded to hold that it was not clearly est ablished that Assaf 's position was one for which political affiliation could not be required and that therefore the defend ant officials were entitled to qualified immunity. It o ffered three

rationales for this conclusion.

The first was that "except for Waskovich, the exist ing Third Circuit precedent provided no guidance." Assa f, 999 F. Supp. at 633. However, Waskovich itself emphasiz ed 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 [governm ent] program." Waskovich, 2 F.3d at 1297 (quoting Brown, 787 F.2d at 169-70). Instead, the District Court's anal ysis 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 establishe d, the Supreme Court has cautioned against looking at the constitutional issue too abstractly. Anderson v. Cr eighton, 483 U.S. 635, 639 (1987). Rather, the right the off icial is

12alleged to have violated must have been `clearly es tablished'

in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clea r that a

reasonable official would understand that what he i s 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 pre viously been held unlawful, but it is to say that in the li ght 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 immuni ty is "well suited to cases where there is no `bright lin e' rule." Appellees' Br. At 12. Were we to adopt this positio n, we would effectively eviscerate the constitutional imp erative behind Branti-Elrod jurisprudence. Under the qualif ied immunity regime contemplated by appellees, liabilit y in

such areas could never attach because the lack of"b right

line" rules inherent in the doctrine would continua lly provide cover for violations of constitutional righ ts. In an earlier case in which we rejected the defendants' q ualified immunity claim, we explained that if we were to req uire " `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 sta tutory requirement.' " Burns, 971 F.2d at 1024 (quoting Pe ople of Three Mile Island v. Nuclear Regulatory Comm'rs, 74 7 F.2d 139, 144-45 (3d Cir. 1984)).

Contrary to the District Court's assertion, our cas es have given guidance to government officials within our c ircuit. An employee may be terminated for political reasons only if "a difference in party affiliation [is] highly like ly to cause an official to be ineffective in carrying out the duti es 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 "seriou s political embarrassment," id. at 1302, will the pos ition 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

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

public office in question and not the actual past d uties of the particular employee involved," id. (quoting Bro wn, 787 F.2d at 168) (alteration and internal quotation mar ks omitted) evidence of past job duties may be, and of ten is, informative, see Peters, 16 F.3d at 1353.

Officials to whom this court applied the Branti-Elr od 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 pla n for an interstate district, in Peters, 16 F.3d at 1354-55, the director of a state veteran's services agency respo nsible 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 cou nty 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 govern ment programs. The common thread among them is that thei r positions related to the government's activity vis- a-vis the public. That is, these positions entail the formula tion or implementation of policies that have a direct impac t on the public or the representation of government policies to the public.

By contrast, Assaf was charged with the responsibil ity of directing--within a very narrow compass of authorit y--an agency overseeing the Commonwealth's motor pool. Wh ile this is, to be sure, an important function, it is n ot a "major government program" in the sense that phrase is use d in our case law. The acquisition, maintenance, and dis position of the Commonwealth's vehicles is a largely endogen ous function of the state government and as such serves an internal and practical purpose--supplying vehicles to Commonwealth agencies and executives, maintaining t hese vehicles, and overseeing the purchase and sale of t he vehicles. There is nothing in these functions that would

lead a reasonable official to conclude that the Dir ector of the Bureau of Vehicle Management made such politica lly sensitive policy judgments that the Director need h ave a

14common political philosophy with the incumbent poli tical

regime.

Moreover, Assaf's position did not involve signific ant contact with the public. He did not represent the Commonwealth or speak in its name, and was thus unl ike the plaintiff in Brown who "present[ed] the views o f the [County] Commissioners to the press and public on a daily basis." 787 F.2d at 170. Assaf's only interaction w ith the public occurred at the auction of the surplus fleet vehicles, plainly not the type of public appearance that requ ires the employee to hew to a particular party's line. As th e District Court noted, to the extent that this function invol ves interaction with the public, it is "a tiny segment of the public, who appear voluntarily for what is essentia lly a commercial transaction--the purchase of a car." Ass af, 999 F. Supp. at 630.

It should not have been difficult to see that far f rom representing the government, as was the plaintiff's duty in Brown, Assaf's public contact was much more like th at at issue in Zold, where we found that political allegi ance was not an appropriate criterion for the decision to te rminate the plaintiff. In Zold, the public contact of the p laintiff, the deputy township clerk, was more extensive than Assa f'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 ma rks omitted).

We reject appellees' argument that our decision in Waskovich could have been understood by reasonable officials to render the political firing of Assaf l awful. The plaintiff in Waskovich was the former Director of t he New Jersey Division of Veterans' Administrative Service s, and as such was responsible for the administration of serv ices and benefits to an estimated 900,000 veterans throughou t the state. See Waskovich, 2 F.3d at 1302. Although Wask ovich oversaw the day-to-day operations of veterans' faci lities, he

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

See id. at 1300. We described his role as that of a government official who "orchestrate[s] the provisi on of veteran services." Id. at 1302. In holding Waskovic h's

15position exempt, we emphasized that Waskovich had

significant policymaking authority with respect to this position, and that "he was involved in policy matte rs on a day-to-day basis, that he made recommendations on p olicy matters on several occasions, that his superiors as ked for his views of major policy proposals such as capital improvement programs, and that he often opposed pol icies they espoused." Id. at 1300.

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

administration of the state's fleet of vehicles. Wi thout denigrating the importance of such a position, ther e is no reason to conclude that high state officials would have analogized Assaf's position to Waskovich's. In ligh t of Assaf's lack of any significant contact with the pu blic and the undisputed fact that Assaf's level of responsib ility did not touch on politically sensitive issues, which wo uld raise the likelihood of serious political embarrassment, no official cognizant of the existing precedents of this court could have concluded that the modest managerial responsibiliti es over the Commonwealth agencies' fleet of cars would cons titute meaningful input into a major government program.

The second reason given by the District Court for i ts 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 prec edents suggests that middle managers qua middle managers a re more likely to fall within the exception than other types of employees. In fact, not one of our Branti-Elrod de cisions even mentions the term "middle management" or"middl e manager." To the contrary, as we observed in Brown, managerial or supervisory authority, by itself, doe s not suffice to bring a position within the Branti-Elrod exception. See Brown, 787 F.2d at 169-70. In short, to label s omeone a middle manager says nothing about whether or not that person has significant policy-making responsibiliti es that make adherence to the incumbent party's political philosophy a necessary job requirement.

In a similar vein, the District Court suggested tha t the division of authority between the Seventh Circuit i n Selch v. Letts, 5 F.3d 1040 (7th Cir. 1993), and the Fourth Circuit

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

supports the determination that it was unclear whet her Assaf's duties were such that he was subject to pat ronage 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 analy sis, that middle managers may be subject to political firing. Selch concerned the position of "subdistrict superintende nt," a job that involved "plan[ning the] annual workload a nd determin[ing] resource requirements based upon that plan; --investigat[ing] and tak[ing] corrective action on complaints and information requests from the genera l public; [and] --provid[ing] personal supervision, p ersonnel, 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 Ci rcuit in Selch held that the position was one for which p atronage dismissal was constitutionally permissible; the Fou rth in Akers had held the opposite.

The Selch and Akers plaintiffs had a great deal of responsibility to decide how the physical maintenan ce of streets gets done, and, as is well known, local pol itical regimes can stand or fall on the incumbents' abilit y to fix potholes and remove snow. In any event, those decis ions from other circuits cannot reasonably have been rel ied on by officials in a state within this court's jurisdi ction when this court has numerous opinions to serve as guidan ce on the subject.

The final reason offered by the District Court in s upport of qualified immunity was the observation that"Assa f's duties were not merely technical, he participated i n meetings, and he could control others." Assaf, 999 F. Supp. at 633. This description, however, could just as we ll apply to any public employee with a measure of supervisor y responsibility. Although Assaf met with the Deputy Secretary every two weeks along with the other Bure au Directors, occasionally met with Fields alone, and on three occasions attended out-of-state programs held by th e National Association of Fleet Administrators that highlighted products and involved discussions of fl eet

17management techniques, these functions say nothing

significant about the extent to which his duties re quired that he have the same political affiliation as the incumbent regime.

In his position as Director of the Bureau of Vehicl e Management for the Commonwealth, Assaf had management responsibilities in three principal area s: (1) obtaining and maintaining the Commonwealth's fleet of vehicles; (2) directing the operation of the Common wealth Garage (i.e., supervising the maintenance of the fl eet); and (3) overseeing the disposition of Commonwealth-owne d

vehicles at auction. These duties do not involve ma tters that have an impact on the public nor does the Bure au Director represent the government in its interactio ns 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 involve s 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 signi ficant. In particular, the record suggests that Assaf did not enjoy the power to hire or fire employees, but only to reprim and 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 contr acts

with outside vendors. Assaf oversaw the administrat ion of the auctions, but the selection of cars and the tar get prices to be achieved at auction were set by formula, not according to the Director's initiative. Although As saf instituted a set of procedures for the conduct of t he 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 th e auction stage, and attempting to ensure that the target pri ces were

18obtained, see Assaf at 93-95, show the technical na ture of

his input.

Appellees make much of the fact that Assaf forwarde d to Fields a suggestion for altering the formula for ca lculating the labor rates for maintenance contracts (a sugges tion ultimately adopted by Fields), but we do not find i n this event an indicium of "significant input into broad goals" sufficient to support qualified immunity. Leaving a side the fact that the suggestion was not, in the first inst ance, the product of any initiative on Assaf's part, the narr ow ambit of the suggestion and the fact that it was up to Fi elds to

make the ultimate decision as to whether it would b e implemented further suggest that such "broad goals" as the Bureau may have had were firmly in the control of F ields, not Assaf. As the District Court aptly summed up, " the plaintiff ran the day-to-day operation of the Burea u, but Fields kept a `tight rein.' " Assaf, 999 F. Supp. a t 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 cons istent to have clearly established to all state and municipal employers that firing or other adverse employment a ction for political reasons contravenes the Constitution unless defendants could show that the particular position came within the narrow exception." Burns, 971 F.2d at 10 24. That conclusion is just as applicable here. Here, a s in Burns, the defendants "should have related this est ablished law to the instant situation." Id. at 1025, (quotin g Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985) (internal quotation marks omitted)).

The nature and limits of Assaf's responsibilities a nd authority were not unknown to defendants Fields and Crowell. After all, it was Fields to whom Assaf dir ectly reported, and Fields in turn reported to Crowell. I n fact, Crowell who, as the Secretary of General Services, was responsible for Assaf's termination, testified at h is deposition that party affiliation was not an approp riate requirement for the job. See Crowell at 61. In Burn s, we saw no reason why any "reasonable employer" would h ave thought that the employee "could be fired for polit ical

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

reasonable official should have known that the limi ted nature of Assaf's authority would place his positio n in line with those that we held were protected by the First Amendment in Zold (deputy municipal clerk who ran d ayto-day functions of the clerk's office), Furlong (s econd deputy recorder of deeds, who satisfied mortgages, recorded

documents and forwarded taxes to the relevant autho rities), and Burns (deputy sheriff who was responsible for s erving process, transporting prisoners, and guarding court rooms).

Consequently, we hold that a reasonable official wo uld not have concluded under clearly established law th at political loyalty could be required for Assaf's pos ition.

IV.

For the reasons set forth, we will reverse the deci sion of the District Court granting summary judgment to defendants on the ground that they have qualified immunity. As the defendants have argued that they d id 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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