Delong v. U.S.

Decision Date13 May 1980
Docket NumberNo. 78-1847,78-1847
PartiesMahlon M. DELONG, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Alfred F. Belcuore, Washington, D. C., (Walter H. Fleischer, Cole & Groner, P. C., Washington, D. C., on brief), for appellant.

George P. Williams, Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., James Michael Kelly, Asst. Gen. Counsel, Raymond W. Fullerton, Director, Litigation Division, Thomas Edmondson, Judith A. Wenker, U. S. Dept. of Agriculture, Washington, D. C., on brief), for appellees.

Before WINTER and PHILLIPS, Circuit Judges, and DUMBAULD, Senior District Judge, Western District of Pennsylvania, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Delong, formerly the State Director of the Farmers Home Administration (FmHA) division of the United States Department of Agriculture for the State of Maine, brought this action in the United States District Court to challenge his reassignment and transfer for political patronage reasons to a new position in Washington, D. C. His action sought, on constitutional grounds, 1 injunctive and declaratory relief designed to restore to him his former position with all related benefits, and reversal by judicial review of an administrative determination that his transfer did not violate his rights under the Veterans' Preference Act, 5 U.S.C. § 7511. The district court rejected both claims, granting summary judgment in respect of the claim for declaratory and injunctive relief and affirming the administrative decision. We affirm on the administrative claim, but reverse and remand for further proceedings on the constitutional claim in light of the intervening decision of the Supreme Court in Branti v. Finkel, 445 U.S. ----, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

I

After the change in National Administration in 1977, the Secretary of Agriculture began replacing Republican state directors of FmHA with Democratic appointees, and created a "program assistant" position for incumbent Republican state directors who had statutory procedural rights as military veterans. Delong's reassignment and transfer were the result of this process.

Delong's prior position as state director for the State of Maine was classified as a "Schedule A" exception from the competitive civil service, and as one not "of a confidential or policy-determining character." It involved by job description actual responsibilities that lay questionably on the line between policymaking and nonpolicymaking. His reassigned position as project assistant carried the same pay, civil service grade (GS-15), and fringe benefits as did his prior position, but allegedly entailed reduced responsibilities. Whereas his work as state director involved supervision of about 175 employees in Maine, final authority over about $130 million annually in loans, and administrative leadership in planning, organizing, and implementing programs in the state, Delong offered proof that as project assistant he "has had little or nothing to do," "has been given no secretary or staff and no long-range assignments," "has been doing work normally performed by employees with the grade GS-11," "has never even met Mr. Cavenaugh, the (FmHA) Administrator" to whom project assistants are supposed to report, has been "given orders for repeated travel" and "transfers to inconvenient or distant locations on short notice," and has received "petty assignments to write insignificant or useless reports and do work . . . normally done by employees with grades much lower than GS-15." On cross-motions for summary judgment, the district court concluded that as a matter of law Delong's former position was a policymaking one within the principle announced in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), so that his claim of constitutional protection for his continued employment in that position must fail on that fundamental point.

II

Elrod held that the dismissal or threat of dismissal from government employment of a nonpolicymaking official because of his political belief and affiliation abridged his First Amendment rights of speech and association by imposing an unconstitutional condition upon the employment. Id. at 359-60, 96 S.Ct. at 2682-2683 (plurality opinion); id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). The basis for the holding was that

(u)nder (patronage) practice, public employees hold their jobs on the condition that they provide, in some acceptable manner, support for the favored political party. The threat of dismissal for failure to provide that support unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise.

Id. at 359, 96 S.Ct. at 2683 (plurality opinion); see id. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). On the other hand, patronage dismissals of governmental officials holding policymaking positions were said to be justified by a compelling state interest in effective "implementation of policies of the new administration." Id. at 367, 96 S.Ct. at 2687 (plurality opinion).

Because the specific decision in Elrod turned so critically upon the "policymaking or nonpolicymaking" inquiry, it was generally assumed that this constituted the completely dispositive inquiry with respect to any government job for which constitutionally protected status was claimed. E. g., Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978); Committee to Protect First Amendment Rights of Employees of the Department of Agriculture v. Bergland, (D.C.Cir., Dec. 27, 1979). Because Elrod, so understood, provided the controlling law when the district court considered the parties' cross-motions for summary judgment on Delong's claim in the instant case, both parties and the district court properly focussed on this as the threshold and possibly dispositive question for decision. As indicated, the district court resolved it against Delong. Elrod still controlled on this issue down through submission of this case following oral argument on appeal to this court. Following its submission, Branti was decided on a basis which so substantially modified this understanding of the Elrod principle 2 that remand for reconsideration in light of the principle as newly articulated in Branti is required.

In remanding, we express no view on the proper application of Branti to the specific facts of the instant case. That is better left for first instance consideration in the district court, where recasting of the pleadings, further pre-trial proceedings, or other reordering of the case's presentation may be appropriate to accommodate to the principle as given new expression in Branti.

III

Resolution of the threshold issue whether, under Branti, Delong's former position carried constitutional protection against patronage burdens may not end the matter upon remand. If protection is found due, there will remain the question whether the transfer and reassignment in issue constituted an unconstitutional burden. Because both Elrod and Branti involved dismissals, neither directly addressed the question whether other burdens of the patronage system short of threatened or actual dismissal might similarly violate First Amendment rights. 3

On this appeal the government has contended that as a matter of law a transfer and reassignment such as Delong's cannot constitute an unconstitutional burden; that Elrod 's protection was not intended to extend to lesser burdens than the dismissal there involved. To the contrary, Delong contends that Elrod 's principle, as opposed to its specific rule of decision, sweeps wider than threatened or actual dismissals and includes other patronage burdens of less ultimate severity. Delong finds support for this general proposition in several lower federal court decisions; 4 and, more critically urges that Johnson v. Bergland, supra, decided by this court after entry of the district court judgment in the instant case, establishes as the law of this circuit that a patronage transfer and reassignment such as Delong's constitutes an unconstitutional burden upon protected employment.

We agree with Delong and against the government that the Elrod-Branti principle must be construed to provide protection against a wider range of patronage burdens than threatened or actual dismissals. This much we did recognize in Johnson in the course of reversing the denial of interlocutory injunctive relief to a claimant facing a patronage transfer like Delong's. But even though the claimant in Johnson held the same government position as Delong's our decision in that case committed us only to the view that comparable transfers might violate the Elrod-Branti principle, not that all would as a matter of law. 5 Just as the issue whether protection exists at all with respect to a particular position is one to be decided under Branti on the circumstances defining the special character of the position, so is the issue whether a particular transfer or reassignment violates any protected rights one to be decided on the specific facts of the case. As with disputed issues in general, the latter issue like the former may be resolved as one of law or fact depending upon the evidence adduced.

Because it may be necessary upon remand to decide whether Delong's transfer and reassignment falls within the proscribed area, we must do here what was not required in Johnson : define the legal standard by which the determination is to be made. That standard can only be derived by looking to the broader principle of unconstitutional burdens on government employment that in Elrod and again in Branti were applied specifically only to dismissals. That broader principle, expressly drawn upon in Elrod, is that the government

may not deny a benefit to a person on a basis that infringes his constitutionally protected interests especially, his interest...

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