                        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).

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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.

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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.

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