REVISED November 28, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit _____________________ FILED November 6, 2007 No. 07-50537 Summary Calendar _____________________ Charles R. Fulbruge III Clerk
SHELTON CHARLES, Plaintiff-Appellee v. GARY GRIEF, in his individual and official capacity, Defendant-Appellant
Appeal from the United States District Court for the Western District of Texas
Before WIENER, BENAVIDES, and PRADO, Circuit Judges. WIENER, Circuit Judge. Defendant-Appellant Gary Grief, an upper-level official of the Texas
Lottery Commission (“the Commission”), appeals the district court’s denial of
his motion for summary judgment seeking dismissal on grounds of qualified
immunity from the 42 U.S.C. § 1983 racial discrimination and employment
retaliation suit filed by Plaintiff-Appellee Shelton Charles whose job as a
systems analyst with the Commission was terminated by Grief. Concluding
that we lack appellate jurisdiction to hear Grief’s appeal of the district court’s interlocutory ruling because it is grounded in genuine issues of fact, we
dismiss Grief’s appeal.
I. FACTS & PROCEEDINGS
Charles sent e-mails to members of the legislative committee that had
oversight of the Commission, alleging, inter alia, violations of the Texas Open
Records Act, misuse of state funds, and misconduct by Commission
management. Charles sent a copy of his last such e-mail to Commission
officials. Two days later, Grief directed Charles to meet with his immediate
supervisor and a human resources manager to answer questions regarding
the e-mail. When those two began to question Charles about the e-mails, he
requested that the Commission’s questions be put in writing so that he could
respond in writing. According to Charles, a representative of the Commission
agreed to do so. That same day, however, Grief appeared unannounced in
Charles’s office and fired him on the spot, handing Charles a written
statement to the effect that he was being fired for insubordination,
specifically for his “refusal to respond to the direct request from [his]
immediate supervisor.”
After Charles sued Grief and the Commission for inter alia employment
retaliation in violation of Charles’s constitutional right of free speech, Grief
sought dismissal as a defendant on grounds of qualified immunity, which the
district court denied, largely on the basis of a magistrate judge’s Report and
2 Recommendation. Like the magistrate judge, the district court held that the
summary judgment record, when viewed in the light most favorable to the
plaintiff as the non-movant, established genuine issues of fact. These
included (1) whether Charles was fired for insubordination or for sending the
e-mails to members of the state legislature, and (2) whether he was speaking
as a citizen on matters of public concern and interest of the State and was
thus entitled to protection of the First Amendment (as asserted by Charles) or
merely making the statements as a public employee, possibly even pursuant
to his official duties as contended by Grief.1
II. APPELLATE JURISDICTION
Subject to a few narrow exceptions, federal appellate courts do not have
jurisdiction to hear appeals of interlocutory rulings of the trial courts.2 One
such exception grants us jurisdiction to entertain an appeal from the
interlocutory denial of a state actor’s motion to be dismissed, on grounds of
qualified immunity, as a defendant in a § 1983 lawsuit asserting the violation
of a constitutional right.3 It is well settled, however, that not every
1 See Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006), holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 2 Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). 3 Connelly v. Tex. Dep’t of Criminal Justice, 484 F.3d 343, 346 (5th Cir. 2007).
3 interlocutory denial of such a defendant’s claim of qualified immunity is
immediately appealable: Only those denials that turn on legal issues, such as
the materiality of a disputed fact —— and not those that turn on factual issues,
such as the trial court’s finding of the presence of a genuinely disputed issue
of fact —— are immediately appealable.4 Thus, when a defendant has sought
summary dismissal on grounds of qualified immunity, and the district court
has denied that motion based on a determination that the summary judgment
evidence, taken in the light most favorable to the plaintiff as non-movant, is
sufficient to establish the existence of a material fact dispute, we have no
appellate jurisdiction to review the interlocutory order denying qualified
immunity.5 More precisely, our appellate jurisdiction is proscribed as to those
interlocutory denials of qualified immunity in which the trial court has
determined that the factual dispute is “genuine”; only when denial of
qualified immunity turns on whether a genuinely disputed fact is “material”
are we authorized to review the order immediately.6
We frequently encounter this dichotomy which contrasts those
interlocutory orders denying qualified immunity that are appealable (the ones
that turn on issues of law, such as the materiality of a genuine fact issue) and
4 Kinney, 367 F.3d at 346. 5 Id. at 346-47. 6 Id. at 347.
4 those that are not appealable (the ones that turn on issues of fact, such as the
genuineness of a dispute) when —— as in the instant case —— a public employee
asserts a claim of an adverse employment action at the hands of one or more
state actors as the result of speech that the employee insists was uttered on
an issue of public concern, not merely internal job-related grievances, and is
thus protected by the First Amendment. Moreover, cases of this genre
frequently involve the two material fact questions at issue today: Was the
speech in question a substantial or motivating factor in the decision to
terminate the employee; and, if so, did the speech address matters of public
concern entitling the speaker to First Amendment protection?7
The law regarding the question whether an employee has spoken on a
matter of public concern or only on issues of employment personal to him was
tweaked last year by the Supreme Court in its holding in Garcetti to the effect
that employee speech made pursuant to official duties cannot be speech made
as a citizen for First Amendment purposes. Garcetti did not, however, change
the body of jurisprudence that determines appellate jurisdiction for
immediate review of denial of qualified immunity: None can dispute that the
Free access — add to your briefcase to read the full text and ask questions with AI
REVISED November 28, 2007 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit _____________________ FILED November 6, 2007 No. 07-50537 Summary Calendar _____________________ Charles R. Fulbruge III Clerk
SHELTON CHARLES, Plaintiff-Appellee v. GARY GRIEF, in his individual and official capacity, Defendant-Appellant
Appeal from the United States District Court for the Western District of Texas
Before WIENER, BENAVIDES, and PRADO, Circuit Judges. WIENER, Circuit Judge. Defendant-Appellant Gary Grief, an upper-level official of the Texas
Lottery Commission (“the Commission”), appeals the district court’s denial of
his motion for summary judgment seeking dismissal on grounds of qualified
immunity from the 42 U.S.C. § 1983 racial discrimination and employment
retaliation suit filed by Plaintiff-Appellee Shelton Charles whose job as a
systems analyst with the Commission was terminated by Grief. Concluding
that we lack appellate jurisdiction to hear Grief’s appeal of the district court’s interlocutory ruling because it is grounded in genuine issues of fact, we
dismiss Grief’s appeal.
I. FACTS & PROCEEDINGS
Charles sent e-mails to members of the legislative committee that had
oversight of the Commission, alleging, inter alia, violations of the Texas Open
Records Act, misuse of state funds, and misconduct by Commission
management. Charles sent a copy of his last such e-mail to Commission
officials. Two days later, Grief directed Charles to meet with his immediate
supervisor and a human resources manager to answer questions regarding
the e-mail. When those two began to question Charles about the e-mails, he
requested that the Commission’s questions be put in writing so that he could
respond in writing. According to Charles, a representative of the Commission
agreed to do so. That same day, however, Grief appeared unannounced in
Charles’s office and fired him on the spot, handing Charles a written
statement to the effect that he was being fired for insubordination,
specifically for his “refusal to respond to the direct request from [his]
immediate supervisor.”
After Charles sued Grief and the Commission for inter alia employment
retaliation in violation of Charles’s constitutional right of free speech, Grief
sought dismissal as a defendant on grounds of qualified immunity, which the
district court denied, largely on the basis of a magistrate judge’s Report and
2 Recommendation. Like the magistrate judge, the district court held that the
summary judgment record, when viewed in the light most favorable to the
plaintiff as the non-movant, established genuine issues of fact. These
included (1) whether Charles was fired for insubordination or for sending the
e-mails to members of the state legislature, and (2) whether he was speaking
as a citizen on matters of public concern and interest of the State and was
thus entitled to protection of the First Amendment (as asserted by Charles) or
merely making the statements as a public employee, possibly even pursuant
to his official duties as contended by Grief.1
II. APPELLATE JURISDICTION
Subject to a few narrow exceptions, federal appellate courts do not have
jurisdiction to hear appeals of interlocutory rulings of the trial courts.2 One
such exception grants us jurisdiction to entertain an appeal from the
interlocutory denial of a state actor’s motion to be dismissed, on grounds of
qualified immunity, as a defendant in a § 1983 lawsuit asserting the violation
of a constitutional right.3 It is well settled, however, that not every
1 See Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006), holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 2 Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing 28 U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). 3 Connelly v. Tex. Dep’t of Criminal Justice, 484 F.3d 343, 346 (5th Cir. 2007).
3 interlocutory denial of such a defendant’s claim of qualified immunity is
immediately appealable: Only those denials that turn on legal issues, such as
the materiality of a disputed fact —— and not those that turn on factual issues,
such as the trial court’s finding of the presence of a genuinely disputed issue
of fact —— are immediately appealable.4 Thus, when a defendant has sought
summary dismissal on grounds of qualified immunity, and the district court
has denied that motion based on a determination that the summary judgment
evidence, taken in the light most favorable to the plaintiff as non-movant, is
sufficient to establish the existence of a material fact dispute, we have no
appellate jurisdiction to review the interlocutory order denying qualified
immunity.5 More precisely, our appellate jurisdiction is proscribed as to those
interlocutory denials of qualified immunity in which the trial court has
determined that the factual dispute is “genuine”; only when denial of
qualified immunity turns on whether a genuinely disputed fact is “material”
are we authorized to review the order immediately.6
We frequently encounter this dichotomy which contrasts those
interlocutory orders denying qualified immunity that are appealable (the ones
that turn on issues of law, such as the materiality of a genuine fact issue) and
4 Kinney, 367 F.3d at 346. 5 Id. at 346-47. 6 Id. at 347.
4 those that are not appealable (the ones that turn on issues of fact, such as the
genuineness of a dispute) when —— as in the instant case —— a public employee
asserts a claim of an adverse employment action at the hands of one or more
state actors as the result of speech that the employee insists was uttered on
an issue of public concern, not merely internal job-related grievances, and is
thus protected by the First Amendment. Moreover, cases of this genre
frequently involve the two material fact questions at issue today: Was the
speech in question a substantial or motivating factor in the decision to
terminate the employee; and, if so, did the speech address matters of public
concern entitling the speaker to First Amendment protection?7
The law regarding the question whether an employee has spoken on a
matter of public concern or only on issues of employment personal to him was
tweaked last year by the Supreme Court in its holding in Garcetti to the effect
that employee speech made pursuant to official duties cannot be speech made
as a citizen for First Amendment purposes. Garcetti did not, however, change
the body of jurisprudence that determines appellate jurisdiction for
immediate review of denial of qualified immunity: None can dispute that the
7 Only when the employment action is shown to have been taken because of the speech and the speech is shown to have been made by the employee speaking as a citizen on a matter of public concern, does the case progress to the well-known test established in Pickering v. Bd. of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983), balancing (1) the interests of the public in the speech uttered against (2) the interests of the employer in maintaining order, discipline, esprit de corps, and the like.
5 materiality of such questions as (1) whether the adverse employment action
was taken because of the employee’s speech; (2) whether the speech of a
public employee for which he receives an adverse employment action
addresses a matter of public concern is material; and (3) post-Garcetti,
whether the speech at issue was made by the employee pursuant to an official
duty, are quintessential questions of fact. Therefore, when, as here, there is
an undeniably genuine dispute between the affected employee and the state
actor as to whether the employment action at issue was taken because of the
speech (here, the e-mails) or some other, legitimate disciplinary reason (here,
insubordination), the denial of qualified immunity indisputably hinges on a
fact that is genuinely disputed. At that instant, school is out: The denial of
qualified immunity is just not appealable. In Kinney v. Weaver,8 this court
sitting en banc, quoted our earlier statement in Wagner v. Bay City that put it
succinctly: “we can review the materiality of any factual disputes, but not
their genuineness.”9
Here, the district court examined the summary judgment evidence and
very clearly and expressly held that the admittedly material fact questions
—— whether Charles was fired for sending the e-mails and, if so, whether
their content addressed matters of public concern —— are genuinely
8 367 F.3d at 347. 9 227 F.3d 316, 320 (5th Cir. 2000).
6 disputed. Again, this ubiquitous trump card, which pretermits any appellate
jurisdiction to consider an interlocutory order denying qualified immunity for
factual reasons, is obviously unaffected by the legal spin that Garcetti added
to the question what constitutes public speech. Given the clear, unequivocal,
and emphatic pronouncement of the district court that it was denying
qualified immunity because Charles had borne his burden of demonstrating
the presence of issues of fact, of which none can contest the genuineness, our
lack of appellate jurisdiction is pellucid —— and should have been to counsel
for Grief. Every argument in counsel’s brief to the court might be correct and
might ultimately prevail: They simply cannot be heard at this juncture.
III. Ad Hominem
The cost in time and money incurred by a public employee who has
sued in the belief that he has suffered an adverse employment action as the
result of unconstitutional retaliation is significantly increased when, as here,
the defendant takes a clearly unwarranted appeal of an interlocutory denial
of qualified immunity. Taking such an appeal is now unconscionable in light
of this court’s burgeoning precedent uniformly rejecting such appeals of fact-
based denials of qualified immunity for lack of appellate jurisdiction, our
most recent being Connelly.10 Considering the usual disparity in the financial
10 484 F.3d 343 (5th Cir. 2007). The opinion in Connelly was filed on April 10, 2007, more than three months before Grief’s counsel filed his appellate brief, which does not cite Connelly. It was cited, however, in appellant’s reply brief, although not for its relevant
7 conditions of the parties to such actions, cavalierly taking such an appeal
smacks of economic duress. Indeed, this is at least the second such case this
year in which the office of the Attorney General of Texas has improvidently
brought and doggedly prosecuted such an appeal, Connelly being another. We
trust that counsel for Grief, as well as all other counsel who represent public
employers and state actors in such roles, will henceforth carefully heed the
case law of this court on point and be chary to take appeals of interlocutory
orders denying qualified immunity on grounds of the existence of genuine
factual disputes, lest they incur penalties, sanctions, damages for, e.g.,
frivolous appeals, or worse.
IV. CONCLUSION
For lack of appellate jurisdiction, this appeal is DISMISSED with all
costs assessed to appellant.
import in this case. Had counsel for Grief read Connelly, Kinney v. Weaver et al, more objectively, counsel might have done what an officer of the court should have done, viz., dismissed this appeal (which never should have been taken in the first place) for lack of appellate jurisdiction.