concurring:
In my view the extent of the actual holding in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), [a case upon which appellant necessarily relies to establish a cause of action], is measured by Mr. Justice Stewart’s statement that
“The single substantive question involved in this case is whether a nonpolicymaking nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.” 427 U.S. at 375, 96 S.Ct. at 2690.1
Elrod should be interpreted, in my opinion, as an “exemplification of the general principle that exercise of federally guaranteed rights, especially freedom of speech, must not be penalized.” Mulherin v. O’Brien, 588 F.2d 853, 857 (C.A. 1, 1978).
Consequently I would conclude that appellant’s situation does not fall within Elrod. He has not been discharged, or threatened with discharge. He has simply been transferred to another job with equal rank *626and pay (both being policymaking jobs, in my estimation).2 The Civil Service Commission correctly held that there had been no adverse action affecting him, however unhappy he may be in leaving the lobster-pots of Maine for the hot summers of the nation’s capital.3
Moreover, appellant did not demonstrate in brief or argument any specific assertion of free speech. It was not even stated that he was a registered voter in any party. He did not courageously and patriotically expose any corruption or inefficiency in the Department of Agriculture.4
In fact the record is consistent with an inference that the transfer complained of was merely a “new broom” replacement of appellant by someone his superior felt he could work with more satisfactorily. Such personnel changes often occur in the private sector, for example when a corporate takeover results in a shakeup in the executive suite. Appellant did not convincingly demonstrate that his transfer was due to political factors rather than personal “new-broom” preferences on the part of his superiors.
In my judgment the holding of the District Court and of the Civil Service Commission should be sustained. However, the majority in Johnson v. Bergland, 586 F.2d 993, 995 (C.A. 4, 1978), seems to hold that being “relocated in a distant state” might “suffice to establish an infringement of . first amendment rights.” Although this goes beyond what was authoritatively held in Elrod, I am bound to accept it as the law of the Fourth Circuit, and therefore concur in remand to the District Court for determination of the factual issues whether appellant’s position in Maine was of a policy-making nature5 and whether his transfer was equivalent in coercive impact to dismissal or threat of dismissal. I agree entirely with the majority’s affirmance of the District Court’s conclusion that there was no “adverse action” against appellant because he suffered no “reduction in rank or pay.”
. Mr. Justice Brennan’s “wide-ranging opinion” [427 U.S. at 374, 96 S.Ct. at 2690] was accepted by only two other Justices.
. The fact that the Civil Service Schedule classified his job as nonpolicymaking (i. e., not involving nationwide policy formulation) is not conclusive with respect to the scope of policy-making as understood by Mr. Justice Stewart.
. As Judge K. K. Hall commented in his dissent in Johnson v. Bergland, 586 F.2d 993, 996 (C.A. 4, 1978), it is hard to believe that “a job transfer to Mississippi is an injury of constitutional magnitude, a proposition which might startle the citizens of that state.”
. Compare the cases of the school teacher who was dismissed for publishing in a newspaper a letter criticizing the school board for spending too much money for athletic fields instead of teachers’ salaries, or the welfare worker who criticized irregularities in administration of the food stamp program. 588 F.2d at 856-57.
. In view of the modification of Elrod by the majority of the Supreme Court in its 5 — 4 decision in Branti v. Finkel, 445 U.S. -, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), after this opinion had been written, I must substitute “whether appellant’s position in Maine was one in which party affiliation is a legitimate factor to be considered and an appropriate requirement for the effective performance of the public office involved” for the words “whether appellant’s position in Maine was of a policy-making nature.” In my view the new Brand criterion will be no more helpful to appellant than the Elrod test was; and neither Elrod nor Brand deals with transfer as distinguished from discharge.