Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2007

Yurchak v. Carbon
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2307




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2307


                               ROBERT T. YURCHAK

                                          v.

                              COUNTY OF CARBON;
                               TOM C. GERHARD;
                              WAYNE E. NOTHSTEIN;
                               CHARLES W. GETZ

                                        Tom C. Gerhard and Wayne E. Nothstein,
                                                          Appellants



                     Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 02-cv-00049)
                     District Judge: Honorable A. Richard Caputo


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 19, 2007


               Before: McKEE, AMBRO and MICHEL * , Circuit Judges


                             (Opinion filed: May 7, 2007)



   *
    Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
                                         OPINION


AMBRO, Circuit Judge

       This appeal involves a § 1983 action in which Robert Yurchak challenges his

termination as Chief Public Defender of Carbon County, Pennsylvania. We need not

recite the facts at length, as they have been set out in previous opinions, see Yurchak v.

Cty. of Carbon, No. 3:02-CV-0049, 

(M.D. Pa. Mar. 22,

2006) (Yurchak III); Yurchak v. Cty. of Carbon, 84 Fed. Appx. 218 (3d Cir. 2003)

(Yurchak II), Yurchak v. Cty. of Carbon, No. 02-cv-0049 (M.D. Pa. May 7, 2002)

(Yurchak I). In brief, Yurchak argues that the Carbon County Board of Commissioners,

composed mainly of Republican members, improperly fired him in violation of his First

and Fourteenth Amendment rights. He contends that the then-Commissioners Tom C.

Gerhard and Wayne E. Nothstein terminated him because he ran unsuccessfully for a

judgeship on the Democratic ticket against a Republican candidate whom they supported.

       The Commissioners filed a Rule 12(b)(6) motion to dismiss, raising the defense of

qualified immunity. The District Court denied the motion to dismiss, and we affirmed.

Yurchak II, 84 Fed. Appx. at 220. Reading the facts in the light most favorable to

Yurchak, we agreed with the District Court’s conclusion that, under Branti v. Finkel, 

, 519 (1980), it was clearly established that “the independent nature of a public

defenders office meant that political affiliation was not an appropriate requirement for the

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position of Chief Public Defender . . . [and] Carbon County [therefore] could not

terminate [Yurchak’s] employment based on his political affiliation.” Yurchak II, 84 Fed.

Appx. at 219 (citing Yurchak I). However, we noted that nothing barred the

Commissioners from demonstrating that they were entitled to qualified immunity at the

summary judgment stage if they could “present a set of facts sufficient to refute

Yurchak’s allegations, distinguish the Carbon County Chief Public Defender position

from the position at issue in Branti, and show that its actions were not in violation of

‘clearly established’ law.” 

n.2.

       The Commissioners apparently did not take our statement as an invitation to make

that demonstration, except by re-stating their contentions that the Chief Public Defender

position was a policy-making job for which political affiliation was an appropriate

employment criterion. In the alternative, they argued that they terminated Yurchak not

for political affiliation, but for his alleged impropriety in using the Public Defender’s

secretary for private matters. Between our 2003 decision and the District Court’s 2006

decision now on appeal (Yurchak III), they performed no additional discovery that might

have produced evidence sufficient to refute Yurchak’s claims and no new legal arguments

sufficient to distinguish the Chief Public Defender position here from the position at issue

in Branti. In fact, the only additional discovery came from Yurchak. In 2004, he deposed

the only two employees who worked at the Carbon County Election Bureau during the

time in question—Kenneth Leffler (Election Director) and Lisa Yackanicz (Election



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Clerk). Both testified that Commissioner Gerhard frequently came in to ask about

political party affiliations. In 2005, Yurchak deposed Robert Potestio and Larry Skinner,

both of whom served on the Republican Executive Board with Commissioner Gerhard.

Each testified that Gerhard espoused a policy of firing Democrats and hiring Republicans

when the latter controlled the government, and that he did not believe that this policy

should be limited to policy positions.

       The District Court concluded that the Commissioners were not entitled to qualified

immunity and denied the motion for summary judgment. It reasoned that political

affiliation was an inappropriate criterion for the position of Chief Public Defender

because it was not a policy-making position, that the relevant law to that effect was

clearly established when the Board fired Yurchak, and that there was enough evidence to

allege that two of the Board Members acted with improper motives in terminating him.

Yurchak III, 

, at *3. The Commissioners appeal to us.1



   1
       The District Court had jurisdiction in this case under 28 U.S.C. § 1331. We retain
jurisdiction under the collateral order doctrine to review the District Court’s denial of
qualified immunity at the summary judgment stage, Mitchell v. Forsyth, 

,
527–28 (1985), and over the denial of summary judgment pursuant to 28 U.S.C. § 1291.
        Our review of denials of qualified immunity is plenary. Atkinson v. Taylor, 

, 261 (3d Cir. 2003). Our review of summary judgment decisions is also plenary
and we apply the same standard as the District Court. See, e.g., Scheidemantle v. Slippery
Rock Univ. State System of Higher Educ., 

, 539 (3d Cir. 2006). On appeals
of ordinary summary judgment decisions, we may review only questions of law. Walker
v. Horn, 

, 710 (3d Cir. 2002). On appeals of summary judgment decisions
with respect to political discrimination claims, the standard of review is modified insofar
as it remains the Government’s burden to “prove that political affiliation is an appropriate
requirement for the job.” Armour v. County of Beaver, 

, 420 (3d Cir. 2001).

                                             4
       We need not consider the merits of this appeal, as we have already concluded that

Yurchak alleged a colorable claim of a constitutional violation of clearly established law.

Yurchak II, 84 Fed. Appx. at 219. When we first considered this case, we left open the

possibility that the Commissioners could assert a qualified immunity defense successfully,

provided they could distinguish the Chief Public Defender’s position here from the

position at issue in Branti. They have presented no evidence to do so. We therefore

conclude that “because [Yurchak’s] evidence was at least as strong” in the

Commissioners’ first interlocutory appeal “as it was at the summary judgment stage, our

prior ruling . . . controls our resolution of this appeal. . . . Any other ruling would

insufficiently adhere to our prior resolution . . .[,] which is the law of the case.” In re City

of Phila. Litigation, 

, 722 (3d Cir. 1998); see also St. Thomas-St. John Hotel

& Tourism Assoc. v. Virgin Islands, 

, 301–02 (3d Cir. 2004) (“[P]laintiffs

have pointed to no adequate reason for departing from [our previous] holding. . . . There

[are] no intervening new facts or law.”). Moreover, we agree with the District Court that

the Commissioners fail to demonstrate that there are no material issues of disputed fact

that would preclude a jury trial or that the facts, read in the light most favorable to

Yurchak, require a grant of summary judgment in their favor. To the contrary, the

evidence presented by Yurchak in support of his allegations suffices for a jury trial, as the



Where the First Amendment is at issue, we must “undertake exacting review of the whole
record with a particularly close focus on facts that are determinative of a constitutional
right.” 

v. Township of Mantua, 

, 636 (3d Cir. 1991)).

                                               5
question whether the Commissioners’ motives were discriminatory, and therefore in

violation of the First and Fourteenth Amendments, is a genuine issue of disputed material

fact. Accordingly, we affirm the District Court’s determination that the Commissioners

are not entitled to qualified immunity and thus its denial of their motion for summary

judgment.




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