(concurring).
The scholarly and perceptive exposition of the pertinent case law so ably expressed by Judge Stevens, persuades me to concur in the result reached by our decision. Indeed, I must, for such a result is dictated by the sweeping holding of the Supreme Court in Perry v. Sinder-mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).1
Sindermann is arguably distinguishable from this case on its facts; it did not involve a discharged public employee who alleged, as here, that his dismissal was predicated upon his political party affiliation or activities. Rather, the plaintiff there, a state college teacher, claimed that his employment was terminated because of his statements criticizing the college’s Board of Regents, purportedly made in the exercise of his First Amendment right of free expression. The case was thus similar to prior decisions in the special and delicate area of “academic freedom," such as Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 2 and Pick*577ering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811, and could have been decided, in my view, within the framework of such precedents. However, the language of Sin-dermann is not so circumscribed but appears far-reaching and manifestly unequivocal. Thus:
“For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 375 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.” (408 U.S. 597, 92 S.Ct. at 2697.)
Sindermann was decided after briefing and argument of the case at bar and, as I have stated above, prompts me to concur in the result reached by Judge Stevens’ thoughtful opinion. I am constrained at the same time, however, to candidly express several observations that I believe are highly relevant, if not critical, concerning the import and effect of our ruling.
First, it cannot be doubted that our decision stands in sharp and irreconcilable conflict with the decision of the Second Circuit in Alomar v. Dwyer, 447 F.2d 482 (1971), and the decision of the Pennsylvania Supreme Court in American Federation of State, County and Municipal Employees, AFL-CIO v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971). Both of those Courts squarely rejected, as a matter of law, the precise claim made by the plaintiffs here, i. e., that they were discharged from their government jobs because of their allegiance to one political party and refusal to join or support another, and that such discharge violated their First Amendment rights of free association. Both Alomar and Shapp were decided within a year prior to Sindermann. Indeed the Supreme Court without a dissenting voice denied certio-rari in Alomar on January 10, 1972, only six months prior to that Court’s decision in Sindermann. Alomar v. Dwyer, 404 U.S. 1020, 92 S.Ct. 683, 30 L.Ed.2d 667. Too, discussion or even citation of Alo-mar or Shapp was conspicuously omitted from the Sindermann opinion (or in the concurring and dissenting opinions).
Thus, as matters now stand, the declared law of the Second Circuit and of the State of Pennsylvania is diametrically opposed to the law of this Circuit, as so ably formulated and announced herein.3
Moreover, it can reasonably be expected that the conflict and attendant confusion will grow and multiply as other courts are called upon to consider the same issue. Indeed, it should be noted that at least two District Judges in this Circuit have recently followed the Alomar and Shapp decisions, and thus have rejected claims that public employees cannot be discharged because of their political party affiliations without violating the First Amendment. In Burns v. Elrod, (No. 71C607, N.D.Ill., May 31, 1972), Judge Bauer dismissed a complaint alleging that the newly elected Democratic Sheriff of Cook County violated the First Amendment by discharging Republican employees who refused to become Democrats.- And in Shakman v. Democratic Organization of Cook County, (No. 69 c. 2145, N.D.Ill.1972), Judge Marovitz held, in reliance upon Alomar and Burns, that, “political considerations in public employment are only forbidden where those considerations affect voter-candidate-taxpayer rights and in all other respects patronage employees may be hired or fired *578based on political affiliation.” (Slip Opinion p. 20.)
The conflicting and confused state of the law is troubling enough, but I am even more concerned over the impact of today’s decision in thrusting the federal courts into the administration and daily operations of state and local governments. It seems to me that the inevitable effect will be to convert the federal courts into “super civil service commissions” for all state and local government employees not covered by state or local civil service láws. Any and all such employees who are discharged can state an actionable claim in the federal district court by simply alleging (as plaintiffs have done here) that the discharge was caused by political party affiliations or activities. The federal courts will then be obliged to conduct full trials on the merits to determine whether the claims are factually well founded, and the resulting decisions will of course be ap-pealable.
In this case alone, the number of trials and appeals could total as high as 1,946— the. number of employees that the defendant Lewis claims he “found it necessary to discharge” after he became Secretary of State “because of the laxity, inefficiency and confusion prevailing in the Office.” And this represents the possible number of trials and appeals arising from but one department of a State’s government and one change of administration in that department! Considering that there are thousands of state, county and municipal employees not covered by civil service, and that changes of political administration occur in many departments of state and local government after every election, the volume of potential litigation which could result from our decision truly becomes catastrophic.
The scope and complexity of the litigation problems created by our ruling are not lessened by our limiting its applicability to “non-policy making” government personnel. It is simple enough to say that janitors, clerk-typists and elevator operators are “non-rpolicy making” employees, but how far up in the bureaucratic, echelon can the distinction be judicially drawn ? What about a janitorial supervisor, the director of a stenographic pool, a personnel manager, a deputy assistant division head, a deputy director, or even a secretary to a top-echelon director or department head who may have access to confidential information? As Judge Stevens so aptly states, there may be instances when political affiliation constitutes a proper qualification for public employment, particularly in the selection and appointment of “policy-making” officials. Indeed, no one has challenged the right of an elected official to appoint to such positions and for whatever reasons he deems proper, persons in whose loyalty and competence he has the highest confidence. The difficulty arises in attempting to fashion an appropriate and workable judicial standard for distinguishing between “policy-making” and “non policyr-making” positions. In my judgment, the constitution would permit a public official to hire or dismiss on the basis of political association any employee engaged directly or indirectly in the formulation or implementation of the policies of the particular governmental office or agency. A more precise standard is difficult to articulate and thus the true impact of today’s decision must necessarily await case by case determination.4
*579Another vexing and potentially troublesome problem which emerges from our ruling concerns the practical application of the burden of proof standard. It goes without saying, of course, that the burden belongs to and remains with the dismissed employee. It seems equally clear that since a civil service system may not be judicially imposed upon a state or local government, that a public employer cannot be compelled to explain the reasons for termination. Indeed, the imposition of such a “burden of explanation” would run counter to the precise holding of the Supreme Court in Board of Regents v. Roth, 408 U.S. 564,-92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, if a public employer desires to stand silent by way of a general denial to the employees’ allegations, the employee must demonstrate by the clear and convincing weight of the evidence that his dismissal resulted solely because of his political associations. Such a burden is a heavy one but in my view is necessitated by the limited nature of the right Sindermann compels us to recognize today — i. e., the right to be free from summary dismissal only where the dismisal is based solely upon a reason expressly proscribed by the First Amendment to the Constitution.
Therefore, based upon the broad holding of the Supreme Court in Sindermann, I concur.
. Although my remarks are confined to the First Amendment aspects of today’s ruling, I agree fully with Judge Stevens that the Supreme Court’s decision in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) forecloses the plaintiffs’ Fourteenth Amendment claim that they were entitled to “notice” and a “hearing” before their employment could be terminated.
. The Court held in Keyishian:
“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and *577not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U.S. at 603, 87 S.Ct. at 683.
. In accord with Alomar and Shapp, and also in conflict with our decision, is the holding of the Eighth Circuit in Norton v. Blaylock, 409 F.2d 772 (1969), affirming the decision of the Western District of Arkansas, 285 F.Supp. 659 (1968).
. In addition to the inherent difficulty of defining the term, “non-policy making employee”, another problem comes to the surface that is equally perplexing and is of constitutional dimension. If we must judge whether or not an employee may be discharged for exercising his First Amendment rights of free political association on the basis of his job classification, are we not saying that some employments are entitled to greater constitutional protection than others. Are the constitutional rights of an individual to be defined solely With reference to the nature of his employment? I know of no precedent in our system for imposing a “sliding scale” of importance upon the constitutional rights of individuals according to their rank, title, job description or duties, whether in or out of government.