Yarbrough v. City of Sanger ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40814
Summary Calendar
RICHARD YARBROUGH, ET AL,
Plaintiffs,
RICHARD YARBROUGH,
Plaintiff-Appellee,
versus
CITY OF SANGER, ET AL,
Defendants,
LARRY KEESLER; BENNY ERWIN,
Defendants-Appellants.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:98-CV-24
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February 7, 2002
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
Sanger, Texas, Police Chief Benny Erwin and City Administrator
Larry Keesler seek to appeal the district court’s denial of their
motion for summary judgment based on their assertion that they are
qualifiedly immune from Richard Yarbrough’s 42 U.S.C. § 1983 claim
that they discharged him from the police force in violation of his
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
First Amendment rights. Although directed to include in their
brief an argument regarding this court’s appellate jurisdiction,
they have failed to do so.
Federal courts of appeal have jurisdiction of "appeals from
all final decisions of the district courts." 28 U.S.C. § 1291.
“[A] district court’s denial of a claim of law, is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291
notwithstanding the absence of a final judgment.” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985); see Gonzales v. Dallas County,
Texas, 249 F.3d 406 (5th Cir. 2001).
However, a defendant invoking a qualified-immunity defense may
not appeal a district court’s denial of summary judgment insofar as
the order determined whether the record sets forth a genuine issue
of fact for trial. Johnson v. Jones, 515 U.S. 304, 319-20 (1995).
Nevertheless, this court retains jurisdiction to determine as a
matter of law whether the defendants are entitled to qualified
immunity, after accepting all of the plaintiff’s factual
allegations as true, by determining whether these facts show that
the defendants’ conduct was objectively reasonable under clearly
established law. Behrens v. Pelletier, 516 U.S. 299, 313 (1996).
The jurisdictional question, then, is “whether the record reflects
undisputed facts upon which [the court] may make a determination of
the legal question before [it]: whether a reasonable public
official could have believed, in the light of clearly established
law, that the specific conduct of discharging [Yarbrough] did not
violate his constitutional rights.” Gonzales, 249 F.3d at 411.
2
Taking Yarbrough’s allegations as true, the record is
insufficient to enable this court to conclude as a matter of law
that Yarbrough was in fact or could reasonably have been fired for
insubordination and/or retention of overpayments inadvertently made
to him without reference to the other events preceding his
termination, including his protected speech. Compare Gonzales, 249
F.3d at 412-13. Whether Yarbrough’s comments regarding Chief Erwin
and Mayor Coker were a substantial or motivating factor in the
defendants’ decision to terminate him is an unresolved factual
dispute material to the question of the objective reasonableness of
the defendants’ conduct which both precluded summary judgment and
deprives this court of appellate jurisdiction. See Johnson, 515
U.S. at 319-20; Behrens, 516 U.S. at 313; Gonzales, 249 F.3d at
411; see also Lukan v. North Forest Indep. Sch. Dist., 183 F.3d
342, 346 (5th Cir. 1999); Click v. Copeland, 970 F.2d 106, 113 (5th
Cir. 1992). The appeal is therefore DISMISSED for lack of
jurisdiction.
3