Charles v. Grief ( 2007 )


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  •                         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.
    8