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Waskovich v. Morgano

argued: May 6, 1993.

THOMAS R. WASKOVICH, APPELLANT
v.
VITO MORGANO, MAJOR GENERAL; PRESTON M. TAYLOR, BRIGADIER GENERAL; RICHARD BERNARD, DEPUTY COMMISSIONER; THE HONORABLE JAMES J. FLORIO; NEW JERSEY DEPARTMENT OF MILITARY & VETERANS' AFFAIRS; STATE OF NEW JERSEY; CERTAIN UNKNOWN DEFENDANTS



On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 91-01327).

Before: Sloviter, Chief Judge, Cowen and Lewis, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Chief Judge.

Before us is the appeal of plaintiff Thomas R. Waskovich, who alleges that he was fired from his position as Director of Veterans' Administrative Services for the State of New Jersey on the basis of his political party affiliation. The district court granted summary judgment for the defendants, concluding that Waskovich occupied a confidential, policymaking position from which he could be dismissed on that basis. See Waskovich v. Morgano, 800 F. Supp. 1220 (D.N.J. 1992). Waskovich contends that the evidence produced at a hearing held by the district court to illuminate the functions performed by the Director precludes the entry of summary judgment against him.

I.

Facts and Procedural History

Waskovich, a former Republican Mayor of Lacey Township, New Jersey, was appointed in May 1988 to the newly created position of Director of the Division of Veterans' Administrative Services. The Division is one of three branches within the New Jersey Department of Military and Veterans' Affairs (DMVA or Department), a department within the executive branch of state government. See N.J. Stat. Ann. § 38A:3-1 (West Supp. 1993). Waskovich was the first person appointed as Director after the New Jersey legislature transferred responsibility for veterans' issues from the Department of Human Services, where Waskovich had served for a short period, to the DMVA.

Shortly after James Florio, a Democrat, was sworn in as Governor of New Jersey, the Adjutant General, his Deputy, and the Administrator of Veterans' Affairs, who were Waskovich's superiors at the DMVA, were replaced. App. at 129-30.*fn1 Waskovich continued to serve in his position as Director until July 1990, when he was informed by the new Adjutant General that he was being replaced by Joseph Loudermilk, who was then serving as the Chief Executive Officer of the New Jersey Veterans' Memorial Home in Paramus.

On April 1, 1991, Waskovich filed suit in federal court against Major General Vito Morgano (the current Adjutant General of DMVA), Brigadier General Preston Taylor (the Deputy Adjutant General), Richard Bernard (the Administrator of Veterans' Affairs), Governor Florio, the DMVA, and the State of New Jersey. Waskovich alleged that his dismissal violated the First Amendment's prohibition against politically motivated discharges, and sought reinstatement and damages.

After discovery, the defendants moved for summary judgment. The district court granted the motion on Eleventh Amendment grounds with respect to Waskovich's claim for monetary damages against the State, the DMVA, and the individual defendants in their official capacities.*fn2 The district court also concluded that claims against the individual defendants in their personal capacities were barred by the doctrine of qualified immunity.

With respect to defendants' motion for summary judgment on Waskovich's claim for reinstatement, the court stated that there were insufficient facts for it to determine whether political affiliation is a legitimate factor to be considered for the position of Director. Specifically, the court noted that the parties had not submitted affidavits and had filed only "snippets of deposition testimony." App. at 332. In light of the sparse factual record before it, the court concluded that it was unable "to determine precisely what functions Waskovich performed as Director." Id. Accordingly, it ordered a hearing "so that testimony concerning the duties of the director can be heard." App. at 333. It stated further, "After such information has been presented, the court will be able to decide the defendants' motion for summary judgment." Id.

At the hearing, Taylor, Bernard, Morgano, and Loudermilk testified on behalf of the defendants. Waskovich testified on his own behalf. In addition, the parties introduced documents from the two-year period when Waskovich served as Director, including letters and memos written by Waskovich, memos sent to him, and minutes of meetings he attended. Shortly after the hearing, the district court granted defendants' motion for summary judgment. The court assumed for the purposes of the motion that the defendants had discharged Waskovich on the basis of his party affiliation, see Waskovich, 800 F. Supp. at 1223, and thus focused solely on the statutory scheme and the duties and policymaking functions of the Director. Based on this analysis, the court concluded that Waskovich's dismissal did not violate the First Amendment because "political affiliation is an appropriate requirement for the position of Director." Id. at 1227.*fn3

Waskovich filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291 (1988), and exercise plenary review over the district court's grant of summary judgment. See Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991).

II.

Summary Judgment Procedure Followed in the District Court

We comment initially on the procedure followed by the district court in holding an evidentiary hearing before granting the motion for summary judgment. In Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985), the district court granted defendant's motion for summary judgment on plaintiff's procedural due process claim after holding "a lengthy evidentiary hearing which appears to have been designed to resolve the crucial factual dispute, whether [plaintiff] was discharged before or after he was given a hearing by [defendant]." Id. at 190. The court concluded that the defendant's position was "contrary to 'the overwhelming weight of the evidence.'" Id. at 191 (quoting district court opinion). On appeal, because we held that plaintiff's claim was barred on other grounds we did not address the merits of the due process issue and the finding made by the district court on the evidence. Nevertheless, we noted that Fed. R. Civ. P. 56(c)*fn4 is explicit as to the materials that can form a basis for summary judgment, and does not mention an evidentiary hearing. We stated:

There is no reference to any evidentiary hearing, for obvious reasons. If there is a dispute as to a fact that can only be determined after a hearing, then the issue may not be resolved by summary judgment. The procedure followed in this case by which the court directed a hearing and made factual determinations on which the summary judgment was predicated was unauthorized and improper.

Id. at 192.

The issue arose again in Hancock Industries v. Schaeffer, 811 F.2d 225 (3d Cir. 1987), a suit by private haulers of Philadelphia solid waste challenging on constitutional and statutory grounds the closing of two Pennsylvania county landfills to waste originating outside the counties. Plaintiffs moved for a preliminary injunction and several defendants filed motions to dismiss or in the alternative for summary judgment. The district court scheduled a preliminary injunction hearing and informed the parties that all pending motions might be considered at that time. At the hearing, the court "permitted various defense witnesses to testify and be cross-examined, admitted stipulated facts into evidence, and accepted the parties' proffers as to what their witnesses would say if they testified." Id. at 228.

On appeal, we affirmed the district court's grant of summary judgment for the defendants. In reviewing a challenge to the procedure adopted by the court, we noted that the district court properly had relied on the factual information presented as the record basis for deciding the preliminary injunction motion. Id. at 230. With respect to the summary judgment motions, we explained that the court appropriately "utilized the testimony at the . . . hearing to determine what facts were not in dispute." Id. After noting that several courts of appeals had held that "the use of oral testimony on a summary judgment motion is specifically authorized by Fed. R. Civ. P. 43(e)," id. at 230 n.2, we stated:

Testimony given in an evidentiary hearing is no different from testimony given in a deposition and may be treated the same in summary judgment proceedings. As with deposition testimony and affidavits, if there is no contradictory evidence, facts testified to in a hearing may be accepted as true for summary judgment purposes without an assessment of the credibility of the witnesses.

Id. at 230-31 (citation omitted); see also 6 James W. Moore et al., Moore's Federal Practice P 56.11[8], at 56-154 (1993). Finally, we concluded that the district court could properly have "looked to the testimony of the defendants' witnesses for an articulation of the public purpose which the decisions ...


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