                             REVISED
               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT
                          _______________

                            No. 96-20326
                          _______________



                          BARBARA COLEMAN,

                                            Plaintiff-Appellee,

                               VERSUS

            HOUSTON INDEPENDENT SCHOOL DISTRICT, et al.,

                                            Defendants,

                            ANITA ELLIS,

                                            Defendant-Appellant.


                     _________________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                      _________________________

                            May 19, 1997

Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit
Judges.

JERRY E. SMITH, Circuit Judge:



     Defendant Anita Ellis takes this interlocutory appeal from the

denial of her partial motion for summary judgment, contending that

she is entitled to qualified immunity from suit in her personal

capacity.   Concluding that plaintiff Barbara Coleman has failed to

demonstrate that Ellis violated a clearly established constitu-
tional right, as required by Siegert v. Gilley, 500 U.S. 226

(1991), we reverse.



                                         I.

      In   1994,   Ellis    was    the   principal     at    Ryan     Middle   School

(“Ryan”), an institution within the defendant Houston Independent

School District (“HISD”). When the position of assistant principal

became     available,     Ellis    informed   Coleman,       with     whom    she   was

previously acquainted, of the opening.                  Coleman, who is white,

interviewed for the position and assured the committee that she

could write and speak Spanish, which Ellis considered a prerequi-

site for the assistant principal in the bilingual environment at

the   school.      Thereafter,       Ellis    recommended          that   Coleman    be

appointed assistant principal.

      Ellis sent her recommendation to Andre Hornsby, district

superintendent of HISD with supervisory authority over Ryan.                         By

affidavit,      Hornsby    testified      that   soon       after    receiving      the

recommendation,      he    obtained      information        from    another    school

district     administrator        discrediting    Coleman’s         qualifications.

Because this communication allegedly raised concerns that Coleman

was not actually bilingual, as she had promised, Hornsby was

reluctant to place Coleman permanently in the position of assistant

principal.      Therefore, at Hornsby's request, Ellis and Hornsby

agreed to appoint Coleman to the position of “acting” assistant

principal, thereby affording them an opportunity to evaluate her

performance during the remainder of the 1994-95 academic year.


                                          2
      Coleman served as “acting” assistant principal at Ryan during

the spring semester of that year.              The parties hotly dispute

whether her performance was satisfactory.              By affidavit, Ellis

testified that Coleman failed to demonstrate a functional fluency

in   Spanish   during   the   course    of    the   semester,   with   adverse

consequences for relations between the administration and the

student body. Coleman emphatically denied these charges, insisting

that she had adequately demonstrated fluency in Spanish; allega-

tions to the contrary, she claims, are merely a pretext for

impermissible racial discrimination.

      Regardless of her performance as “acting” assistant principal,

Coleman admits that Ellis notified her in early June 1995 that she

intended to recommend Coleman for the assistant principal position,

and Ellis simultaneously requested that Coleman begin drafting the

papers necessary for the permanent appointment.             On June 14, 1995,

however, Hornsby advised Coleman that she would not receive a

permanent appointment as assistant principal at Ryan.                  Coleman

alleges that Hornsby explained it was necessary for him to hire an

Hispanic as the assistant principal; Hornsby vehemently denies the

allegation, claiming that he merely advised Coleman that the new

assistant principal must be bilingual, a qualification Coleman had

not adequately demonstrated during her tenure as “acting” assistant

principal.

      Believing   herself     to   be   the   victim   of   unlawful    racial

discrimination, Coleman filed suit against HISD, Ellis, Hornsby,

and Parlee Crawford, naming the individual defendants in their


                                        3
official and individual capacities.1         Coleman alleged that defen-

dants' actions constituted unlawful racial and national origin

discrimination in violation of the Equal Protection Clause and

42 U.S.C §§ 1981 and 1983 and conspiracy to discriminate against

her in violation of 42 U.S.C. § 1985.

      The individual defendants pleaded the affirmative defense of

qualified immunity and, after limited discovery, filed a partial

motion for summary judgment on that basis.              The district court

granted summary judgment to Crawford and Hornsby concerning the

allegations of discrimination at Jones High School but denied

qualified immunity to Ellis and Hornsby concerning the allegations

of discrimination at Ryan.          Ellis alone appeals the denial of

qualified immunity.



                                     II.

      Before reaching the merits, we must determine whether we have

appellate jurisdiction in this interlocutory appeal.                  Coleman

claims that the order denying qualified immunity to Ellis was an

interlocutory order, based on the sufficiency of the evidence,

which is not appealable.       We disagree.



                                      A.


      1
        The complaint alleged two independent acts of unlawful discrimination:
first, the denial of promotion to the position of permanent assistant principal
at Ryan, and second, the denial of appointment to the position of assistant
principal at Jones High School.     While the HISD and Hornsby were named as
responsible defendants in both incidents, Ellis was named only in the specific
allegations concerning Ryan, and Crawford was named only in the allegations
concerning Jones High School.

                                      4
     District court orders denying summary judgment on the basis of

qualified immunity are immediately appealable under the collateral

order doctrine, notwithstanding their interlocutory character, when

based on a conclusion of law.   See Mitchell v. Forsyth, 472 U.S.

511, 530 (1985).   In contrast, such orders are not immediately

appealable if they are based on sufficiency of the evidence.   See

Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995).   Therefore, orders

denying qualified immunity are immediately appealable only if they

are predicated on pure conclusions of law, and not if a “genuine

issue of material fact” precludes summary judgment on the question

of qualified immunity.    We reject Coleman's assertion that the

instant case falls in the latter category.

     The Supreme Court has recently clarified this distinction in

Behrens v. Pelletier, 116 S. Ct. 834 (1996), explaining that the

existence of a genuine issue of material fact does not necessarily

preclude immediate appeal of an order denying qualified immunity.

Insofar as the district court order determines a question of law,

the Court held, the denial of qualified immunity is appealable,

notwithstanding the existence of a genuine issue of material fact.

“Johnson permits petitioner to claim on appeal that all of the

conduct which the District Court deemed sufficiently supported for

purposes of summary judgment met the Harlow standard of 'objective

legal reasonableness.'” Id. at 842; see also Harlow v. Fitzgerald,

457 U.S. 800 (1982) (articulating the test for qualified immunity);

accord Hare v. City of Corinth, 74 F.3d 633, 638 (5th Cir. 1996)

(en banc).


                                5
     Assumed      facts   are    treated        as   undisputed     facts    in    this

analysis.        In the aftermath of Jones and Behrens, we retain

interlocutory jurisdiction to “take, as given, the facts that the

district court assumed when it denied summary judgment,” Jones,

115 S. Ct. at 2159, and to determine whether those facts are

sufficient to state a claim under clearly established law, Nerren

v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996); Cantu

v. Rocha, 77 F.3d 795, 802-03 (5th Cir. 1996).                  “Denial of summary

judgment    on    the   ground   of    qualified       immunity     is    immediately

appealable to the extent that the question on appeal is whether the

undisputed facts amount to a violation of clearly established law.”

Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996).

     Ellis does not challenge the sufficiency of the evidence

underlying   Coleman’s       allegations        of   discrimination.         Instead,

taking as given the facts assumed by the district court, Ellis

claims that she is entitled to qualified immunity as a matter of

law, because those assumed facts do not constitute a violation of

clearly established federal law.                 Therefore, under the rule of

Jones and Behrens, we may exercise appellate jurisdiction over this

interlocutory      appeal,    for     in   doing     so   we   do   not   decide    the

sufficiency of the evidence, nor do we decide disputed factual

contentions.



                                           B.

     We must next identify what facts the district court assumed

when it denied summary judgment.                 This is no easy task in the


                                           6
instant case.   Unfortunately, because the court neither entered a

written order denying Ellis qualified immunity, nor specified its

factual assumptions for the record, we must “undertake a cumbersome

review of the record to determine what facts the district court, in

the light most favorable to the nonmoving party, likely assumed.”

Jones, 115 S. Ct. at 2159; accord Behrens, 116 S. Ct. at 842.

     The grounds upon which the district court denied qualified

immunity emerge from a close review of the record.    Of paramount

importance is the fact that the court did not deny summary judgment

because a genuine issue of material fact existed concerning the

allegations that Ellis intentionally discriminated against Coleman.

To the contrary, the court assumed that Hornsby, “from all of the

evidence, is the principal active administrator” in the contested

employment decisions, whereas Ellis was merely the instrument of

his will.   As the district court explained:

          The evidence suggests, that is before me now and it
     is clearly not fully developed, that under pressure from
     her superiors, Ellis bent to his purpose. Whether she
     bent far enough to be ultimately liable, I have no idea
     at this stage. It seems clear that under circumstances
     which are understandably difficult for her, she was
     caught between an assistant principal and a deputy
     district superintendent. I believe that the case must
     continue against those two individuals.

          And Ms. Ellis, this just may be one more illustra-
     tion that no good deed goes unpunished. If you hadn’t
     recommended her in the first place, you wouldn’t be here.
     But unfortunately, I think you’ve gotten caught in the
     cross-fire. But jurisprudence is that you cannot accede
     to a superior’s position if it turns out to be unlawful.

Consequently, the court denied qualified immunity to both Hornsby

and Ellis, because a genuine issue of material fact existed as to



                                 7
whether Hornsby had engaged in intentional discrimination.2                  “If

she responded to an illegal order,” the court opined, “the person

who gives the order and the person who obeys it and takes the

action, are both responsible and neither is protected by qualified

immunity.”3

      On appeal, Ellis argues that the district court erroneously

imputed Hornsby's alleged discriminatory intent to her, thereby

denying her qualified immunity despite the court’s assumption that

Ellis did not intentionally discriminate against Coleman.                 Under

these circumstances, Ellis claims, she was entitled to summary

judgment on the basis of qualified immunity.             We agree.4



                                      III.



      2
        Throughout the summary judgment hearing concerning qualified immunity,
the court expressed its opinion that Hornsby, not Ellis, was the principal actor
who had initiated the contested employment decisions. “The motivation may be in
question,” the district court said, “but the motivation, if it was, was Hornsby’s
motivation.” Elsewhere, the court noted that “Hornsby apparently had an agenda
different from Ellis’ and acted on it.”
          3
          The court characterized Ellis as an “accessory after the fact” and
suggested that her position was tantamount to the “Nuremberg defense.” Indeed,
the court expressly rejected allegations that Ellis had intentionally discrimi-
nated against Coleman, concluding that “frankly, Ellis’s role seems to have been
far more supportive than derogatory than [sic] Coleman’s efforts.      She gets
caught between Hornsby and Coleman at some point.”
      4
        Given the interlocutory nature of this appeal, we express no opinion as
to whether the district court correctly characterized Hornsby's and Ellis's
relative responsibilities for the contested employment decisions.        Indeed,
because such a determination would require us to evaluate the sufficiency of the
evidence underlying the claim, we would not have jurisdiction to engage in such
an inquiry. See Jones, 115 S. Ct. at 2156; Cantu, 77 F.3d at 802-03. Instead,
we merely recount the assumptions articulated by the district court, for the
limited purpose of making the purely legal determination of whether the facts
assumed amount to a violation of clearly established law. See Nerren, 86 F.3d
at 472; see also Behrens, 116 S. Ct. at 842 (authorizing courts of appeals to
determine the facts assumed by the district court for purposes of interlocutory
appeal); Jones, 115 S. Ct. at 2159 (same). In other words, the question of
whether the district court was correct in its assumptions awaits another day.

                                       8
     Qualified immunity shields government officials performing

discretionary functions from individual liability for civil damages

“insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

We review a claim of qualified immunity under a two-step process.

First, we determine whether the plaintiff has alleged the violation

of a “clearly established constitutional right” under currently

applicable constitutional standards.          If so, we consider whether

the defendant’s conduct was nevertheless “objectively reasonable.”

Nerren, 86 F.3d at 473; Kelly, 77 F.3d at 821.

     In Siegert v. Gilley, 500 U.S. 226, 231 (1991), the Court

emphasized that the threshold inquiry in a qualified immunity case

is whether the plaintiff has sufficiently alleged the violation of

a clearly established constitutional right.             If not, summary

judgment is appropriate, and the case should be dismissed.

     Furthermore, “[a] necessary concomitant to the determination

of whether the constitutional right asserted by a plaintiff is

'clearly established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation of

a constitutional right at all.”        Id. at 232.   Because we conclude

that Coleman failed to allege the violation of a constitutional

right by Ellis, insofar as any of Hornsby's actions are imputed to

Ellis, the   district   court   erred    in   failing   to   grant   summary

judgment on the basis of those assumed facts.




                                   9
                                  A.

       We review the denial of summary judgment de novo.          Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992).    Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”           FED. R. CIV. P. 56(c).    The

party seeking summary judgment bears the burden of showing that

there is an absence of evidence to support the non-movant’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).        After a proper

motion for summary judgment is made, the non-movant must set forth

specific facts showing that there is a genuine issue for trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

       We view facts in the light most favorable to the non-movant

and draw all reasonable inferences in her favor.               Brothers v.

Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994).         If the non-movant

sets forth specific facts in support of allegations essential to

her claim, a genuine issue of material fact is presented, and

summary judgment is inappropriate.      Id.



                                  B.

       In order to state a claim of racial discrimination under the

Equal Protection Clause and § 1983, a plaintiff must demonstrate

that   the   governmental   official   was    motivated   by   intentional

discrimination on the basis of race.     See Washington v. Davis, 426


                                  10
U.S. 229, 238-42 (1976); Vera v. Tue, 73 F.3d 604, 609 (5th Cir.

1996).   “Proof of racially discriminatory intent or purpose is

required to show a violation of the Equal Protection Clause.”

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 265 (1977).

     Likewise, a cause of action for racial discrimination in the

making and enforcement of contracts, under § 1981, requires the

plaintiff to demonstrate intentional discrimination. General Bldg.

Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982);

National Ass’n of Gov’t Employees v. City Pub. Servs. Bd., 40 F.3d

698, 714 (5th Cir. 1994).     Finally, to recover damages for a

conspiracy to deny individuals the equal protection of the laws

under § 1985 the plaintiff must demonstrate that the defendants

were motivated by an invidious discriminatory animus.     Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971); Almon v. Sandlin, 603 F.2d

503, 505 (5th Cir. 1979).

     Consequently, to assert a violation of a constitutional right,

Coleman must prove that Ellis intentionally discriminated against

her on the basis of race.   Invidious discriminatory animus is the

sine qua non of a constitutional claim of racial discrimination.

In the instant case, however, this necessary prerequisite has not

been satisfiedSSat least, not on the basis of the district court's

assumed facts that form the only basis for this appeal.

     The district court assumed, for purposes of summary judgment,

that Ellis did not discriminate intentionally against Coleman.

Indeed, the court expressly rejected any allegation that Ellis had


                                11
been motivated by an invidious discriminatory animus. Instead, the

court assumed that Ellis had acted not of her own volition, but

merely as Hornsby's unwitting (or unwilling) instrument.

       We need not determine whether this factual assumption was

accurate; indeed, as we have previously discussed, we do not have

appellate jurisdiction to review the sufficiency of the evidence.

Jones, 115 S. Ct. at 2156; Nerren, 86 F.3d at 472.        For purposes of

this interlocutory appeal, we are obliged to take, as given, the

facts the district court assumed, and our inquiry is limited to the

narrow question of whether those facts are sufficient to state a

claim under clearly established law.       Behrens, 116 S. Ct. at 842;

Nerren, 86 F.3d at 472.    Because the court assumed that Ellis did

not discriminate    intentionally    against   Coleman,    the   necessary

prerequisite to a constitutional claim of racial discrimination was

not satisfied, and therefore the facts assumed were not sufficient

to state a claim of racial discrimination under clearly established

law.

       Nevertheless, although it assumed that Ellis had not discrimi-

nated intentionally against Coleman, the court refused to grant

Ellis   qualified   immunity,   solely   because   a   genuine   issue   of

material fact existed as to Hornsby's motives. The court concluded

that Hornsby's alleged discriminatory intent could properly be

imputed to Ellis, his subordinate, for purposes of the qualified

immunity inquiry.    This conclusion, which would create a rule of

respondeat inferior, was both unprecedented and erroneous.

       Neither the district court nor Coleman cites any authority,


                                    12
nor are we aware of any, holding that the discriminatory intent of

one official may be imputed to another for purposes of imposing

individual liability under the civil rights laws. To the contrary,

it is firmly established that individual liability under § 1983 may

not be predicated on the vicarious liability doctrine of respondeat

superior.        Only   the   direct     acts   or   omissions      of   government

officials,     not     the   acts   of   subordinates,       will   give   rise   to

individual liability under § 1983.5             Insofar as the district court

assumed that Ellis had not discriminated intentionally against

Coleman, therefore, the necessary prerequisite to a constitutional

claim of racial discriminationSSinvidious discriminatory animusSSwas

absent, and Ellis was entitled to qualified immunity.

      The rule of vicarious liability apparently adopted by the

district court and advocated by Coleman is more sweeping than is

the traditional doctrine of respondeat superior.                Such an unprece-

dented    rule    of    vicarious    liability       would    impose     individual

liability upon subordinates for the acts and omissions of superi-

ors, over whom they have neither control nor authority, thereby

creating a new liability theory of respondeat inferior.                     As the

Tenth Circuit, the only court previously to confront this novel

     5
       See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994)
(en banc); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988);
Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351, 355 (5th Cir. 1987), overruled on
other grounds, Walton v. Alexander, 44 F.3d 1297, 1303 n.4 (5th Cir. 1995) (en
banc); Kline v. North Tex. State Univ., 782 F.2d 1229, 1235 (5th Cir. 1986);
Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985). “Section 1983 will not
support a claim based on a respondeat superior theory of liability.” Polk County
v. Dodson, 454 U.S. 312, 325 (1981); see also Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 738 (1989) (holding that a school district may not be held vicariously
liable for a violation of § 1981 solely on a theory of respondeat superior); Monell
v. Department of Social Servs., 436 U.S. 658, 691 (1978) (holding that a municipal-
ity may not be held vicariously liable for constitutional torts under § 1983 solely
on a theory of respondeat superior).

                                         13
theory of vicarious liability, has explained,

     we know of no authority for imputing a principal’s
     discriminatory intent to an agent to make the agent
     liable for his otherwise neutral business decision.
     Similarly, while discriminatory practices of an agent may
     be imputed back to a principal to render the principal
     liable for its agent’s statutory violations, we have
     found no authority for imputing statutory liability in
     the opposite direction, from a culpable principal to an
     innocent agent.

Brownlee v. Lear Siegler Management Servs. Corp., 15 F.3d 976, 978

(10th Cir. 1994) (citation and footnote omitted); see also Haynes

v. Williams, 88 F.3d 898, 899-900 (10th Cir. 1996).

     Therefore,   in   light   of   the   federal   courts'   refusal   to

recognize even traditional respondeat superior liability under

§ 1983, the district court erred in endorsing a new theory of

respondeat inferior liability.      Accordingly, Ellis was entitled to

qualified immunity under the assumed facts.



                                    IV.

     Finally, we emphasize that our decision in this interlocutory

appeal is limited to the narrow legal proposition that a district

court may not impute the alleged discriminatory motivations of a

superior to a subordinate for purposes of the qualified immunity

analysis.   We reaffirm that individual liability under § 1983 is

predicated on the acts or omissions of the respective individual

defendant, and the principles of vicarious liabilitySSwhether the

classic rule of respondeat superior or the novel rule of respondeat

inferiorSSare inapposite to constitutional claims of discrimina-

tion.


                                    14
      For purposes of this interlocutory appeal, we are obliged to

take, as given, the facts assumed by the district court, and to

determine whether they state a claim under clearly established law.

Therefore, we opine only that the district court erred in conclud-

ing that the alleged discriminatory motivations of Hornsby could be

imputed to Ellis for purposes of the qualified immunity analysis,

and we express no opinion as to whether the court erred in assuming

that Ellis did not intentionally discriminate against Coleman; nor

do we consider whether a genuine issue of material fact exists

concerning the allegations of intentional discrimination on the

part of Ellis.6    On remand, the district court is free to entertain

this alternate ground for denying qualified immunity.



                                      V.

      The order denying qualified immunity is REVERSED, and this

case is REMANDED with instructions to dismiss all claims pending

against   Ellis    in   her   individual    capacity,    unless   it   should

otherwise appear that qualified immunity is inappropriate.7




      6
        Indeed, as we have said, because such a determination would require us
to evaluate the sufficiency of the evidence underlying the claim, we would not
have jurisdiction to engage in such an inquiry on an interlocutory appeal from
a denial of summary judgment on the basis of qualified immunity. See Jones,
115 S. Ct. at 2156; Cantu, 77 F.3d at 802-03.
     7
       Because the determination of whether a plaintiff has alleged a violation
of a clearly established constitutional right is the first inquiry in the
qualified immunity calculus, we need not consider Ellis’s remaining claims in
this appeal. See Siegert, 500 U.S. at 227.

                                      15
EMILIO M. GARZA, Circuit Judge, specially concurring:



      The district court committed two fundamental legal errors.8

First,    the   “district   court    assumed,    for   purposes    of   summary

judgment, that Ellis did not discriminate intentionally against

Coleman,” without considering the evidence before it.              By doing so

it violated a basic principle of summary judgment law:                   At the

summary judgment stage, we look at the summary judgment record in

the light most favorable to the non-movant, not the movant, in this

case, Ellis.     See Williams v. Time Warner Operation, Inc., 98 F.3d

179, 181 (5th Cir. 1996).

      Furthermore, by doing so, the district court passed over the

only material issue of fact before the district court: “[T]he sine

qua non of a constitutional claim of racial discrimination”))the

invidious discriminatory animus, if any, of Ellis. Coleman had “to

assert a violation of a constitutional right, [that is] Coleman

[had to] prove that Ellis intentionally discriminated against her

on the basis of race.”          Instead, the district court held “that

Hornsby’s alleged discriminatory intent could properly be imputed

to Ellis, his subordinate.”           Obviously, “[s]ummary judgment is



      8
        Accordingly, I agree with the majority that we have appellate jurisdic-
tion to decide this interlocutory appeal. See Johnson v. Jones, ___ U.S. ___,
115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995). I question, however, the majority’s
continuous use of “assumed” facts because of the danger it may be misconstrued
to pervert basic summary judgment law that requires a summary judgment record.
See FED. R. CIV. P. 56(c). Clearly, in Jones, the Supreme Court was referring to
the summary judgment record when it stated “the court of appeals can simply take,
as given, the facts that the district court assumed when it denied summary
judgment for that (purely legal) reason.” See Jones, 115 S. Ct. at 2159 (“[W]e
hold that a defendant, entitled to invoke a qualified-immunity defense, may not
appeal a district court’s summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a <genuine’ issue of fact for
trial.”)(emphasis added).
appropriate      only   <if   the   pleadings,      depositions,   answers    to

interrogatories, and admission on file, together with affidavits,

if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.’   Fed. R. Civ. 56(c).”        Because I agree with the majority that

“a   rule   of   respondent     inferior     [is]    both   unprecedented    and

erroneous,” under Rule 56, it is also not a material issue of fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202 (1986) (“As to materiality, the

substantive law will identify which facts are material.”).

      For these reasons, I concur in the judgment of the court.




                                      -17-
