discharging the plaintiff. Crowell asserted that he wanted the Bureau to emphasize customer service with both the public and employees of state agencies. He supposedly discharged Assaf because Crowell perceived him as not having the type of attitude consistent with that goal. Significantly, Crowell does not mention that he wanted to bring to the Bureau substantive changes in how it performed its mission, just a better attitude.
The defendants have also relied on the state law classifications of the plaintiff's job as a policymaking one, one exempt from civil service protection, and one where the occupant serves at the pleasure of the agency head. However, state law treatment of a job is just one factor to be considered, and it is outweighed by those discussed above.
Finally, we reject the defendants' reliance on Faughender, supra, to argue that political affiliation is an appropriate consideration for the job because the Director of the Bureau controlled the line of communication to the Deputy Secretary and the Secretary. In Faughender, the job at issue was secretary to the major, obviously a crucial position for the free flow of information to that official. In the instant case, on the other hand, Assaf only had to communicate to Fields about matters in the Bureau about which Fields would have had an ability to measure Assaf's performance. It may be only a matter of degree, but a distinction is proper here.
Since we have decided that the first amendment protected Assaf's job, we must now decide if the defendants have qualified immunity from the plaintiff's damage claim.
B. Qualified Immunity.
The Supreme Court has stated that "government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). Even where they violate clearly established rights, officials will nonetheless be immune from suit if they acted in a manner which they reasonably believe to be lawful. Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995).
For a right to be "clearly established," "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 531, 107 S. Ct. 3034, 3039 (1987). While the right need not have been held unlawful under factually identical circumstances, "in the light of pre-existing law the unlawfulness must be apparent." Id.; Good v. Dauphin County Social Services for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989). A conclusion after the fact that the conduct is unlawful is insufficient, since government officials should not "be expected to anticipate subsequent legal developments." In re City of Philadelphia, supra, 49 F.3d at 961 (quoted case omitted).
The defendants argue that they are entitled to qualified immunity because officials in their positions could reasonably have believed that Assaf's job was a political one from which he could have been discharged on the basis of party affiliation. In support, they point out that every case presenting a Branti-Elrod claim is "fact specific," Peters, supra, 16 F.3d at 1353, that the case is close enough to Waskovich to have allowed the defendants to have relied on that case, and that at least some of the factors used to determine whether a job is political favored their decision to discharge Assaf. Specifically, they rely on the state's classification of the position, that it was supervisory and played a role in hiring, firing and discipline, that the job had contact with the Deputy Secretary and Secretary of the Department with (in their view) policy discussions.
In opposition, the plaintiff relies on the fact that it was well established before his discharge that a person could not be fired from certain positions on the basis of political affiliation and that Crowell knew this. Hence, if the first amendment protected his job, the defendants should be held liable.
We agree with the defendants that they are entitled to qualified immunity. Initially, we note that the plaintiff's opposition argument is totally inadequate. Of course, in the abstract the defendants could not fire someone from a job that was not political, but the test is whether the contours of the right were sufficiently clear that a reasonable official would have known that he could not have fired the plaintiff for political reasons. We do not believe that is true for the following reasons.
First, except for Waskovich, the existing Third Circuit precedent provided no guidance since it was factually distinguishable, as our discussion of Peters, Zold and Brown make clear. And Waskovich itself would have informed the defendants only of what was sufficient for finding that the job was political job, not what was necessary.
Second, the plaintiff's position could fairly be characterized as being in "middle management," below the actual policymakers but above a first-level employee. Other circuits have split about whether these types of supervisory positions are entitled to first amendment protection. Compare Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993)(county superintendents in West Virginia responsible for road maintenance and repair were not in a political job even though they implemented policy) with Selch, supra, 5 F.3d at 1045-1046 (disagreeing with Akers about a similar job in Indiana and treating implementation of policy just as important as creating it). The defendants could have thought that, even though plaintiff's input into policy was minimal, they still had to rely on him to implement it. See also Collazo Rivera, supra, 812 F.2d at 262 (reliance on a detailed guidebook does not render a job nonpolitical since implementation of policy is just as important as policymaking).
Finally, as we noted above, some factors did favor the defendants; Assaf's duties were not merely technical, he participated in meetings, and he could control others. Moreover, even on the ones that did not favor them the defendants could have reasonably believed that his input into them made his job political.
In conclusion, we accept the qualified immunity defense and we will issue an appropriate order.
William W. Caldwell
United States District Judge
Date: February 13, 1998
AND NOW, this 13th day of February, 1998, it is ordered that:
1. The defendants' motion for summary judgment (doc. 10) is granted.
2. The Clerk of Court shall enter judgment in favor of the defendants and against plaintiff and close this file.