                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT       United States Court of Appeals
                                                                      Fifth Circuit
                          ))))))))))))))))))))))))))
                                                                   FILED
                                No. 06-50092                    November 9, 2007

                          ))))))))))))))))))))))))))          Charles R. Fulbruge III
                                                                      Clerk
ARTHUR ELIZONDO,

                  Plaintiff-Appellee,

     v.

FLETCHER PARKS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,

                  Defendant-Appellant.


             Appeal from the United States District Court
                   for the Western District of Texas
                             No. 04-CV-1025



Before DAVIS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     This appeal arises from Plaintiff-Appellee Arthur Elizondo’s

(“Elizondo”) suit alleging that Defendant-Appellant Fletcher Parks

(“Parks”)    retaliated     against    him    in   violation     of     the           First

Amendment.     Elizondo worked as a Business Development Specialist in

the University of Texas at San Antonio’s (“UTSA”) Minority Business

Development Center (“MBDC”) from 1987 until his termination on

November 11, 2002.      In the autumn of 2002, the MBDC experienced a



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
budget shortfall.        Parks, the director of the MBDC and Elizondo’s

supervisor, met with a number of UTSA officials to discuss ways to

resolve the shortfall.        One option was to fire two employees.           At

the   meeting,    Judy   Ingalls,   director    of   UTSA’s    Small   Business

Development Center (“SBDC”), devised an alternative plan in which

Parks would temporarily transfer two of his employees--Luke Ortega

(“Ortega”) and Elizondo--to the SBDC.          Under the plan, Elizondo and

Ortega would continue to serve their MBDC clients, without charging

the customary fee, and they would assist the SBDC in increasing

minority participation in contracting/procurement and technology.

Ingalls sought and received approval for the plan from the Small

Business Administration (“SBA”).1

      On October 18, 2002, Parks met with Elizondo and Ortega and

informed them about the temporary reassignment. Ortega accepted the

reassignment,     but    Elizondo   refused.     According     to   Elizondo’s

affidavit,   he    “immediately     informed     Mr.   Parks    that   such    a

commingling of funds from two separate federal grants was illegal

and fraudulent.”2        Elizondo believed that the plan was illegal

because it entailed using a SBA grant to pay for his salary and


      1
      The SBDC is funded in part by a grant from the SBA. A large
percentage of the MBDC’s budget (67% in 2002) comes from a Commerce
Department grant.
      2
       Parks denies that Elizondo made this statement at the
meeting. Elizondo also contends that he called Raquel Suniga, an
SBA employee, on a Commerce Department hotline concerning the
alleged illegal activity. He further maintains that he contacted
numerous attorneys about how to report the alleged fraud.

                                      2
Ortega’s salary even though they would continue to work on behalf

of the MBDC.

     Parks gave Elizondo additional time to change his mind and

accept the reassignment, but Elizondo persisted in refusing the

transfer.      In   a   November   11,    2002   letter,   Parks   terminated

Elizondo’s employment with the MBDC because of Elizondo’s “failure

to cooperate with [his] supervisor, refusal to follow instructions

and refusal to perform [his] assigned duties.”

     Elizondo filed suit against UTSA and Parks on November 10,

2004, alleging First Amendment retaliation, among other claims.3

Parks moved for summary judgment on the First Amendment retaliation

claim on the ground that qualified immunity shielded him from

liability. The district court denied his motion. Parks now appeals

the district court’s denial of his qualified immunity defense.

     We have jurisdiction over this appeal because the denial of

qualified immunity is immediately appealable under the collateral

order doctrine.     Martinez v. Tex. Dep’t of Criminal Justice, 300

F.3d 567, 576 (5th Cir. 2004).           Because this appeal concerns the

district court’s denial of summary judgment based on qualified

immunity, we have jurisdiction “only to the extent that the appeal

concerns the purely legal question whether the defendant is entitled

     3
       Elizondo also brought claims against both Parks and UTSA
under the False Claims Act, 31 U.S.C. § 3730(h), and the Texas
Whistleblower Act, Tex. Gov’t Code Ann. § 554.001 et seq (Vernon
1988). The district court dismissed all claims against UTSA, and
it dismissed all claims against Parks except for First Amendment
retaliation.

                                     3
to qualified immunity on the facts that the district court found

sufficiently supported in the summary judgment record.”              Modica v.

Taylor, 465 F.3d 174, 179 (5th Cir. 2006) (quoting Kinney v. Weaver,

367 F.3d 337, 347 (5th Cir. 2004) (en banc))(alterations omitted).

In other words, “we do not review the district court’s determination

that a genuine factual dispute exists; instead, we ‘consider only

whether the district court erred in assessing the legal significance

of the conduct that the district court deemed sufficiently supported

for purposes of summary judgment.’”          Id. (quoting Kinney, 367 F.3d

at 348).    “Where factual disputes exist in an interlocutory appeal

asserting qualified immunity, we accept the plaintiffs’ version of

the facts as true.”         Kinney, 367 F.3d at 348.

     “The        doctrine   of   qualified   immunity    shields    government

officials acting within their discretionary authority from liability

when their conduct does not violate clearly established statutory or

constitutional law of which a reasonable person would have known.”

Wallace v. County of Comal, 400 F.3d 285, 289 (5th Cir. 2005)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).              Once the

defendant invokes qualified immunity, the plaintiff bears the burden

of demonstrating the inapplicability of the defense.               Modica, 465

F.3d at 179.        The qualified immunity analysis requires a two-step

inquiry.         Id.    First,   we   must   determine   whether    Elizondo’s

allegations, if true, establish a violation of a clearly established

right.     Id.     Second, if Elizondo has alleged such a violation, we

must then decide whether the conduct was objectively reasonable in

                                        4
light of clearly established law at the time of the incident.                  Id.

“Even if the government official’s conduct violates a clearly

established federal right, the official is nonetheless entitled to

qualified immunity if [his] conduct was objectively reasonable.”

Id.

      In this case, the district court denied Parks’s claim of

qualified     immunity      because      it   determined       that    Elizondo’s

allegations, if true, established the violation of a constitutional

right and that allegedly terminating Elizondo for complaining about

fraud was not objectively reasonable.             The district court noted

that, in order to establish a First Amendment retaliation claim,

Elizondo had to demonstrate that: he suffered an adverse employment

action; his speech involved a matter of public concern; his interest

in commenting on matters of public concern outweighed Parks and the

MBDC’s interest in promoting efficiency; and his speech motivated

the adverse employment action. See, e.g., Beattie v. Madison County

Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).            At the time that the

district court ruled on Parks’s summary judgment motion, it applied

the   correct   legal    framework    for     assessing    a   First   Amendment

retaliation claim.

      After the district court rendered its decision, the Supreme

Court decided Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).                     In

Garcetti, a First Amendment retaliation case, the Court held that

“when public employees make statements pursuant to their official

duties, the     employees    are   not    speaking   as   citizens     for   First

                                         5
Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.”     Id. at 1960.   Because

Garcetti had not been decided at the time the district court made

its ruling in this case, the district court did not have the

opportunity to decide whether Elizondo was speaking pursuant to his

official duties.   We decline to make that determination in the first

instance and therefore vacate the district court’s order denying

qualified immunity and remand this case for reconsideration in light

of Garcetti.4

     For the reasons stated above, we VACATE the order of the

district court and REMAND Elizondo’s First Amendment retaliation

claim for reconsideration consistent with Garcetti.

     VACATED and REMANDED.




     4
       We express no opinion on whether Elizondo’s speech was a
matter of public concern.

                                  6
