A court’s decision denying summary judgment on the defense of qualified immunity is considered to be a final judgment.  It can be appealed immediately to the extent that the denial turns on an issue of law. However, an appellate court doesn’t have jurisdiction to review that decision if an interlocutory (or interim decision before the case is concluded) appeal turns on issues of fact. The Third Circuit recently looked at this issue in the context of a terminated government employee and the defense of qualified immunity.

Richard Wren, who was employed as the Director of Veterans’ Affairs of Luzerne County since 2005, was fired in September 2009 by the votes of County Commissioners Petrilla and Urban ("the Commissioners"). Wren brought this action against, among others, the Commissioners alleging that he was unlawfully terminated in violation of his First Amendment rights. The commissioners appealed the District Court’s partial denial of their motion for summary judgment.  They argued that the United States Court of Appeals had appellate jurisdiction over this interlocutory matter and that they are entitled to qualified immunity. 

Circuit Judge Dolores Korman Sloviter, who wrote the opinion in this case, stated that the United States Supreme Court’s line of decisions established that dismissals on the basis of political association are a violation of the First Amendment; however, there is an exception for the dismissal of an employee who held a “policymaking” position.  Even so, that exception is a narrow one. 
 
The exception applies when “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." In the qualified immunity context, that showing was contingent on whether a reasonable official, in the same position, would have been aware that his or her actions violated a clear constitutional right. The determination is fact-specific and depends on if the right at issue was clearly established. The parties here disputed whether Wren’s constitutional right was clearly established. The District Court partly denied the County’s motion for summary judgment on the ground that material facts were in dispute, and it couldn’t be said—as a matter of law—that the position of Director of Veterans’ Affairs was one for which political affiliation was an appropriate requirement. 
 
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, attending 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.
 
Judge Sloviter wrote that in its past decisions it had held that testimony by the relevant hiring authority that political affiliation was not an appropriate requirement for a particular office was evidence probative of whether the authority can make the showing required. Here, the Commissioners testified that they didn’t believe political affiliation was an appropriate requirement for Wren’s position.  Further, none of the Commissioners testified otherwise, a fact the District Court found compelling. 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. This, Judge Sloviter said, suggested a limited scope of authority. In light of the record, the Third Circuit held as matter of law that the position of Director of Veterans’ Affairs fell within the exception set out by the U.S. Supreme Court. Because it didn’t have an undisputed record of what Wren did in his position, the Third Circuit agreed with the District Court that the case was not appropriate for summary judgment at that time.
 
The Commissioners argued that the case was controlled by Waskovich v. Morgano (3d Cir. 1993), where the Court of Appeals found that the position of Director of Veterans’ Administrative Services for the State of New Jersey fell within the exception. However, the Third Circuit agreed with the District Court in that the facts in Waskovich differed a great deal from Wren’s situation. Waskovich had significant policymaking authority in his position, and was involved in policy matters on a day-to-day basis. The degree to which Wren was involved in policymaking on a day-to-day basis was in dispute. Despite the superficial similarity in that Wren like Waskovich, “orchestrate[d] the provision of veterans’ services,” Judge Sloviter said that the scope of Wren’s responsibility appeared much narrower and more administrative in character than the scope of Waskovich’s responsibilities.
 
Because reviewing the District Court’s partial denial of the motion for summary judgment turned on disputed issues of fact instead of law, the Third Circuit was without jurisdiction and the appeal was dismissed. Wren v. County of Luzerne, — Fed.Appx. —-, 2013 WL 6511509 (C.A.3 (Pa.) December 13, 2013).
 
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