PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-2491
FRANK MINOR
v.
DELAWARE RIVER AND BAY AUTHORITY; JAMES N.
HOGAN, Individually and in their official capacity as com-
missioner; JAMES BENNETT, Individually and in their offi-
cial capacity as commissioner; SHEILA MCCANN, Individu-
ally and in their official capacity as commissioner; CEIL
SMITH, Individually and in their official capacity as commis-
sioner; SHIRLEY R. WILSON, Individually and in their offi-
cial capacity as commissioner; SAMUEL E. LATHEM, Indi-
vidually and in their official capacity as commissioner;
CRYSTAL L. CAREY, Individually and in their official ca-
pacity as commissioner; HENRY J. DECKER, Individually
and in their official capacity as commissioner; WILLIAM
LOWE, Individually and in their official capacity as commis-
sioner; JAMES L. FORD, Individually and in their official
capacity as commissioner; MICHAEL RATCHFORD, Indi-
vidually and in their official capacity as commissioner,
Appellants
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1:19-cv-21343)
District Judge: Joshua D. Wolson
Argued on March 7, 2023
Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges
(Opinion Filed : June 8, 2023)
William F. Cook [Argued]
William M. Tambussi
Brown & Connery
360 North Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Counsel for Appellants
Richard M. Pescatore [Argued]
1055 E Landis Avenue
Vineland, NJ 08360
Counsel for Appellee
2
OPINION OF THE COURT
AMBRO, Circuit Judge
The Delaware River and Bay Authority (DRBA) hired
Frank Minor as its Deputy Executive Director in 2009 and ter-
minated him in December 2017. Minor, believing he was fired
for his support of then-incoming New Jersey Governor Phil
Murphy, sued the DRBA and its Commissioners for violating
his First Amendment right to political affiliation. 1 Following
discovery, the defendants moved for summary judgment. In
that motion, the Commissioners sought qualified immunity.
The Court rejected their request. Ruling that a reasonable jury
could conclude that Minor’s responsibilities were purely ad-
ministrative by the time he was dismissed, it reasoned that the
Commissioners were barred potentially by the First Amend-
ment from firing Minor on account of his politics.
The Commissioners appealed the District Court’s ruling
under the collateral order doctrine, which allows for appeal of
a prejudgment order that (1) conclusively determines a dis-
puted issue, (2) resolves an important question completely sep-
arate from the merits of the case, and (3) is effectively unre-
viewable on appeal from a final judgment. See Digit. Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994). On
appeal, they argue they did not violate a clearly established
right when they fired Minor based on his political affiliation
1
Minor also brought other constitutional and state law claims
that are not at issue in this appeal.
3
because that affiliation was necessary for the effective perfor-
mance of his job as Deputy Director. In other words, the Com-
missioners contend that the DRBA had an overriding govern-
mental interest in replacing Minor with someone who could
further the agency’s objectives regardless of Minor’s First
Amendment rights. Finally, apart from their arguments di-
rected at Minor’s job responsibilities, the Commissioners
claim the District Court erred by analyzing their entitlement to
qualified immunity collectively rather than individually.
The District Court was correct in ruling that the right of
certain employees not to be fired based on political affiliation
was clearly established. However, because there is a genuine
dispute of material fact concerning whether Minor held such a
position as Deputy Director, we lack jurisdiction to review the
District Court’s denial of qualified immunity as to Chairman
James Hogan and therefore dismiss the appeal as to his claim.
The question of his immunity must await the determination of
facts at trial.
The remaining Commissioners may ultimately face the
same fate. But first, our precedent requires the District Court
to “analyze separately, and state findings with respect to, the
specific conduct of each [Commissioner].” Grant v. City of
Pittsburgh, 98 F.3d 116, 126 (3d Cir. 1996). As no such indi-
vidualized analysis was performed, we assert limited jurisdic-
tion, vacate the qualified immunity order as it relates to these
defendants, and remand for a “careful examination of the rec-
ord . . . to establish . . . a detailed factual description of the
actions of each individual defendant (viewed in a light most
favorable to the plaintiff).” Id. at 122 (citing Johnson v. Jones,
515 U.S. 304, 311 (1995)). To aid our review, we need to learn
more about whether each Commissioner could “know that his
4
or her specific conduct violated clearly established rights.” Id.
at 121 (emphasis omitted) (citing Anderson v. Creighton, 483
U.S. 635, 636–37 (1987)). An individualized analysis will pro-
vide that information.
I. BACKGROUND
A. Factual Background
The DRBA is a bi-state agency created by interstate com-
pact between Delaware and New Jersey. It is charged with the
operation of several vital transportation assets between both
states, and with furthering economic development in Delaware
and the four southern counties of New Jersey.
The DRBA’s Board of Commissioners consists of twelve
Commissioners, six each from New Jersey and Delaware. The
DRBA also has a Deputy Executive Director—a position his-
torically appointed by the Commissioners. On paper, the Dep-
uty Director “serves in a key leadership role with the Executive
Director [to] ensur[e] that the core mission of the [DRBA] is
achieved,” and “is essential to and has the primary responsibil-
ity for all [DRBA]-related economic development.” JA 308.
In reality, evidence suggests that the Deputy Director does
“very little” and is “not a policymaking position.” JA 13 (Op.
at 9); JA 1698. Former DRBA Executive Director Scott Green
testified to that effect at Minor’s separate unemployment pro-
ceeding, explaining that the Deputy Director position was cre-
ated by “stitching together a number of things people thought
were not important.” JA 240; see also JA 802.
The DRBA appointed Frank Minor as Deputy Director in
April 2009. Over time, his working relationship with the
5
Board soured. Defendants 2 blame this deterioration on Mi-
nor’s poor communication, bad performance, and absenteeism.
Whatever the cause, Minor’s falling out with the Board coin-
cided with a marked degradation of his already circumscribed
responsibilities. By 2017, he (1) did not have the authority to
hire, fire, or promote, (2) could not discipline employees, (3)
had no say in budgeting processes, (4) had no authority to enter
into contracts on behalf of the DRBA, and (5) could not attend
meetings without the express consent of the Executive Direc-
tor. It was “difficult [for the DRBA] to come up with enough
duties” for Minor, JA 1609, and the seven direct reporting em-
ployees first assigned to him were reduced to one administra-
tive assistant by 2017.
That year, while still employed by the DRBA, Minor sup-
ported Phil Murphy in his run for Governor of New Jersey
through fundraising and other efforts. When Governor Mur-
phy won the election, he appointed Minor to his transition
team. This caused problems for Minor because Governor Mur-
phy was a political rival of New Jersey State Senate President
Stephen Sweeney, who was close with DRBA Chairman Ho-
gan. When Minor learned of Senator Sweeney’s displeasure at
his joining Governor Murphy’s transition team, he resigned
2
The DRBA, also included for convenience in this opinion as
a defendant, argues that it is a “necessary party” to the appeal
because “if qualified immunity is granted, all federal claims
will be dismissed, thus divesting the District Court of any ju-
risdiction to review a remaining state law claim against DRBA
for breach of contract.” Opening Br. 1–2. Because we lack
jurisdiction to review the District Court’s denial of qualified
immunity as it relates to Chairman Hogan, we do not consider
the DRBA’s “necessary party” argument.
6
from that group. But, according to Minor, the damage was al-
ready done, and Senator Sweeney urged Hogan to terminate
Minor before Governor Murphy could be sworn in and veto the
DRBA’s decision.
On December 19, 2017, the DRBA passed two resolutions
terminating Minor. Resolution 17-66 stripped employment
tenure from the Deputy Director position. And Resolution 17-
67, which turned on the passage of Resolution 17-66, termi-
nated Minor by asserting a loss of confidence by the Commis-
sioners. Minor insists that this termination, in fact, owed to his
support of Governor Murphy and his misalignment with State
Senator Sweeney. The record lends some support to this view:
“On the morning the [C]ommissioners voted to terminate []
Minor, Senator Sweeney’s long-time attorney called [] Minor
before the vote to tell him not to come into work because the
[C]ommissioners were going to terminate him later that morn-
ing. Then, shortly after the [C]ommissioners voted to termi-
nate [] Minor, [] Hogan called Senator Sweeney to let him
know.” JA 9 (Op. at 5); see, e.g., JA 239, 1798, 1807.
B. Procedural Background
Following his termination, Minor sued the DRBA and its
individual Commissioners, asserting (1) a First Amendment
claim for violating his rights to political affiliation, (2) a Four-
teenth Amendment due process claim, (3) a breach-of-contract
claim, and (4) a claim for municipal liability under 42 U.S.C.
§ 1983. The defendants moved to dismiss the entire suit, but
the District Court excised only Minor’s due process claim.
The parties then engaged in discovery, and the defendants
moved for summary judgment on Minor’s three remaining
7
claims. That motion succeeded only as to the § 1983 cause of
action for municipal liability against the DRBA. The Court
denied summary judgment as to the remaining claims and re-
fused to extend qualified immunity to the individual Commis-
sioners. Thereafter, the defendants filed this appeal challeng-
ing the denial of qualified immunity.
II. DISCUSSION3
A. Qualified Immunity and the Collateral Order Doc-
trine
We start by canvassing familiar principles of qualified im-
munity. That doctrine shields officials from civil liability “in-
sofar as their conduct does not violate clearly established stat-
utory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). “To resolve a claim of qualified immunity, [we] en-
gage in a two-pronged inquiry: (1) whether the plaintiff suffi-
ciently alleged the violation of a constitutional right, and (2)
whether the right was clearly established at the time of the of-
ficial’s conduct.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235,
241 (3d Cir. 2016) (cleaned up). A “clearly established right”
must be so clear that every “reasonable official would [have
understood] that what he is doing violates that right.” Ander-
son, 483 U.S. at 640; see also Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011) (observing that we do not charge officials with
3
The District Court had jurisdiction under 28 U.S.C. § 1331.
To the extent we have jurisdiction, we have it pursuant to 28
U.S.C. § 1291 and the collateral order doctrine, and we review
questions of law anew. Dougherty v. Sch. Dist. of Phila., 772
F.3d 979, 985 (3d Cir. 2014).
8
understanding a clearly established right unless existing prec-
edent has “placed the statutory or constitutional question be-
yond debate”). “[C]learly established rights are derived either
from binding Supreme Court and Third Circuit precedent or
from a robust consensus of cases of persuasive authority in the
Courts of Appeals.” Bland v. City of Newark, 900 F.3d 77, 84
(3d Cir. 2018) (cleaned up). We therefore start by looking to
analogous precedents of the Supreme Court and the Third Cir-
cuit. See L.R., 836 F.3d at 247–48. Then, we examine persua-
sive authorities, such as rulings from other Courts of Appeals.
See id.
Certain orders that deny a defendant’s motion for summary
judgment on qualified immunity are appealable under 28
U.S.C. § 1291 because it “is an immunity from suit rather than
a mere defense to liability and is effectively lost if a case is
erroneously permitted to go to trial.” Forbes v. Twp. of Lower
Merion, 313 F.3d 144, 147 (3d Cir. 2002) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526–27 (1985)) (cleaned up). Our re-
view is limited to issues of law, though. If the denial of quali-
fied immunity turns on a genuine issue of fact, we lack juris-
diction to review the qualified-immunity order. See Johnson,
515 U.S. at 319–20; Doe v. Groody, 361 F.3d 232, 237 (3d Cir.
2004). Crystallizing this distinction, we have explained that
we may review whether the set of facts identified
by the district court is sufficient to establish a vi-
olation of a clearly established constitutional
right, but we may not consider whether the dis-
trict court correctly identified the set of facts that
the summary judgment record is sufficient to
prove. When a defendant argues that a trial judge
erred in denying a qualified-immunity summary-
9
judgment motion because the judge was mis-
taken as to the facts that are subject to genuine
dispute, the defendant’s argument cannot be en-
tertained under the collateral-order doctrine but
must instead await an appeal at the conclusion of
the case.
Forbes, 313 F.3d at 147–48 (quoting Ziccardi v. City of Phila.,
288 F.3d 57, 61 (3d Cir. 2002)) (cleaned up); see also James v.
N.J. State Police, 957 F.3d 165, 167 (3d Cir. 2020) (observing
that we “lack jurisdiction to review the District Court’s deter-
mination that a factual dispute is genuine, but we have juris-
diction to consider whether the disputed fact is material to the
issue on which a party sought summary judgment”).
Recognizing that “it is often a difficult endeavor for a court
of appeals to try to separate an appealed order’s reviewable de-
termination (that a given set of facts violates clearly established
law) from its unreviewable determination (that an issue of fact
is ‘genuine’),” Blaylock v. City of Phila., 504 F.3d 405, 409 (3d
Cir. 2007) (quoting Johnson, 515 U.S. at 319), “two supervi-
sory rules” aid our review of orders that deny a defendant’s
motion for summary judgment on qualified immunity grounds.
Williams v. City of York, 967 F.3d 252, 254–55 (3d Cir. 2020).
First, Forbes requires district courts “to specify those ma-
terial facts that are and are not subject to genuine dispute and
explain their materiality.” 313 F.3d at 146. This requirement
reflects our understanding that because the “scope of our juris-
diction to review [a district court’s decision denying summary
judgment] depends upon the precise set of facts that the District
Court viewed as subject to genuine dispute,” we are “hard
pressed to carry out our assigned function” when district courts
10
do not specify the set of facts on which they rely.4 Id. at 146,
148.
Second, following Grant, we require courts to “analyze
separately, and state findings with respect to, the specific con-
duct of each [defendant].” 98 F.3d at 126. This “ensure[s] that
district courts enforce the tenet . . . that a ‘plaintiff alleging that
one or more [state] officers engaged in unconstitutional con-
duct must establish the personal involvement of each named
defendant to survive summary judgment and take that defend-
ant to trial.’” Williams, 967 F.3d at 257–58 (quoting Jutrowski
v. Twp. of Riverdale, 904 F.3d 280, 285, 289 (3d Cir. 2018)).
When presented with an interlocutory appeal in which a
district court elides these supervisory rules, “we . . . remand[.]”
Blaylock, 504 F.3d at 410.
B. Minor’s First Amendment Claim and the Elrod-
Branti exception
In reviewing the District Court’s denial of qualified im-
munity, we also examine the substance of Minor’s constitu-
tional claim. To prevail on his First Amendment political af-
filiation claim, Minor must show that (1) he was employed at
a public agency in a position that does not require political af-
filiation, (2) he was engaged in constitutionally protected con-
duct, and (3) the conduct was a substantial or motivating factor
4
“While it is true that [Supreme Court precedent] contemplates
that we may review the record ourselves, [Johnson, 515 U.S.
at 319], Forbes reduces the frequency with which we take on
this ‘cumbersome’ task and allows us the alternative of vacat-
ing and remanding.” Williams, 967 F.3d at 258.
11
in the government’s decision to terminate him. Galli v. N.J.
Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007). Of
these three elements, the parties spar only over the first—
whether Minor was employed in a position that did not require
political affiliation. See, e.g., Opening Br. 21–30.
On this point, “[a]dverse employment actions against gov-
ernment employees that are based on political affiliation are,
as a general rule, prohibited.” Armour v. Cnty. of Beaver, 271
F.3d 417, 427 (3d Cir. 2001) (collecting cases). But a narrow
and important exception—the Elrod-Branti exception—exists
“for particular positions for which political affiliation is found
to be an appropriate requirement.” Id. at 428. “The notion of
what constitutes a position for which political affiliation may
acceptably be required has developed over time.” Id. Initially,
in Elrod v. Burns the Supreme Court adopted an approach that
distinguished between policymaking and non-policymaking
positions. See 427 U.S. 347, 367 (1976) (“Limiting patronage
dismissals to policymaking positions is sufficient to [further
government effectiveness and efficiency]. Nonpolicymaking
individuals usually have only limited responsibility and are
therefore not in a position to thwart the goals of the in-party.”).
Following suit, we held that policymaker status itself—not the
factors it comprises—presented a question of fact. See Rosen-
thal v. Rizzo, 555 F.2d 390, 393 n.5 (1977) (“[T]he determina-
tion of status as a policymaker vel non presents a difficult fac-
tual question.”).
However, the Supreme Court soon grew “dissatisfied” with
Elrod’s “categorical” approach and shifted focus to “whether
the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the
public office involved.” Boyle v. Cnty. of Allegheny, 139 F.3d
12
386, 395 (3d Cir. 1998) (citing Branti v. Finkel, 445 U.S. 507,
518 (1980)). Again following suit, we reaffirmed that
“whether an employee falls within the Elrod/Branti exception
is generally one of fact.” Id. at 397. Yet we clarified that “the
ultimate inquiry is not whether the label ‘policymaker’ . . . fits
a particular position,” id. at 395 (quoting Branti, 445 U.S. at
518), but rather whether an employee (1) has duties that are
non-discretionary or non-technical, (2) participates in discus-
sions or other meetings, (3) prepares budgets, (4) possesses the
authority to hire and fire other employees, (5) has a high salary,
(6) retains power over others, and (7) can speak in the name of
policymakers. Galli, 490 F.3d at 271 (citing Brown v. Trench,
787 F.2d 167, 169 (3d Cir. 1986)). Most important to this ho-
listic analysis, we explained, is “whether [an employee] has
meaningful input into decisionmaking concerning the nature
and scope of a major [] program.” Id. (quoting Armour, 271
F.3d at 429). A person who holds an administrative role but
lacks authority to give such input will not suffice.
Against this backdrop, we first determine whether the Dis-
trict Court correctly ruled that the individual defendants may
have been “on notice that their conduct violate[d] established
law,” such that they were not entitled to qualified immunity on
a motion for summary judgment. Hope v. Pelzer, 536 U.S.
730, 741 (2002); see, e.g., Assaf v. Fields, 178 F.3d 170, 177
(3d Cir. 1999) (citing Burns v. Cnty. of Cambria, 971 F.2d
1015, 1024 (3d Cir. 1992)). Although we are mindful of our
obligation not to “define clearly established law at a high level
of generality,” al-Kidd, 563 U.S. at 742, we cannot ignore the
dictates of our precedent, which clearly establishes Minor’s
right not to be terminated from a job without any real respon-
sibility on account of his political affiliation. See, e.g., Galli,
490 F.3d at 271.
13
Consistent with this precedent, the District Court identified
material facts that, if proven, are “sufficient to establish a vio-
lation of a clearly established constitutional right.” Forbes,
313 F.3d at 147 (quoting Ziccardi, 288 F.3d at 61). It pointed
to evidence showing that politics played a role in Minor’s fir-
ing. See, e.g., JA 9 (Op. at 5) (“[S]hortly after the [C]ommis-
sioners voted to terminate Mr. Minor, Mr. Hogan called Sena-
tor Sweeney to let him know.”). It identified portions of the
record showing that Minor’s job responsibilities had been gut-
ted by December 2017. See, e.g., JA 12 (Op. at 8) (noting that
Minor had been stripped of direct reports, lacked authority over
budgets, could not hire or fire employees, and was performing
clerical tasks by the time he was terminated). And it high-
lighted statements by Chairman Hogan showing his awareness
that the Deputy Director role had become a job with minimal
duties by the time Minor was fired—a view that was apparently
widely held. See, e.g., JA 12–13 (Op. at 8–9) (noting that
Chairman Hogan “recounted that it was ‘commonly said’ that
the [Deputy Director position] wasn’t a real job but rather ‘was
a ginned up job to make a political deal’”). If proven, these
facts would show the Deputy Director job was a position from
which one could not be fired because of political affiliation.
Because these disputed facts are material to the question of
whether the Deputy Director job is one for which political af-
filiation can be a basis for termination, we decline to exercise
jurisdiction over defendants’ arguments “that [the] trial
judge . . . was mistaken as to the facts that are subject to genu-
ine dispute.” Compare Forbes, 313 F.3d at 147, with Opening
Br. 29.
14
While we decline to exercise jurisdiction over the order
denying Chairman Hogan’s motion for summary judgment
based on qualified immunity, we note that, per Grant, the Court
needed to conduct a “careful examination of the record . . . to
establish . . . a detailed factual description of the actions of each
[remaining] individual defendant (viewed in a light most fa-
vorable to the plaintiff).” 98 F.3d at 122. This ensures that
every named defendant is personally involved in an alleged vi-
olation before being put through the burden of trial. 5
Here, the Court analyzed the remaining defendants gener-
ally. See, e.g., JA 14 (Op. at 10) (“Less than a month after the
media reported Mr. Minor would join Governor Murphy’s
transition team, the DRBA [C]ommissioners voted to termi-
nate him.”); JA 21 (Op. at 17) (“Minor was not in a policymak-
ing position, and the DRBA’s leadership terminated him for
his political affiliations with Governor Murphy.”). We must
therefore remand the case to allow the District Court to perform
the necessary individual analysis. On remand, circumstantial
evidence might reasonably lead the Court to conclude that the
remaining Commissioners each voted to terminate Minor due
to his political affiliation with Governor Murphy. Or it may
take an alternative reading of the record. See, e.g., JA 172 (cit-
ing Ex. D-28, Response of Commissioner Henry Decker to
Plaintiff’s Interrogatory No. 12) (“I had no knowledge of [Mi-
nor’s] political involvement or affiliation with Governor
5
We have often applied Grant’s supervisory rule strictly. See,
e.g., Rouse v. Plantier, 182 F.3d 192, 200 (3d Cir. 1999). Yet
on occasion we have relaxed it when individual defendants act
in unison. See, e.g., Cole v. Encapera, 758 F. App’x 252, 255
(3d Cir. 2018) (nonprecedential). We express no view on this
limited exception, which was not raised by the parties.
15
Murphy. Since I was unaware of any such political involve-
ment, it was not a factor.”). In any event, the District Court is
best suited to perform this task in the first instance.
***
Because there are material facts in dispute, we cannot say
as a matter of law that the Deputy Director position is one for
which political affiliation is an appropriate requirement. This
means we lack jurisdiction to review Chairman Hogan’s appeal
and will dismiss it. James, 957 F.3d at 167.6 We assert limited
jurisdiction to vacate and remand the Court’s qualified immun-
ity order as it relates to the remaining Commissioners. Grant
requires a separate analysis for each individual defendant and
one was not performed. 98 F.3d at 126.
6
Because the District Court has federal question jurisdiction,
we reject the defendants’ request to remand with instructions
to dismiss Minor’s breach-of-contract claim for lack of supple-
mental jurisdiction.
16