
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1223                               CHARLES STELLA, ET AL.,                                Plaintiffs, Appellees,                                          v.                             JOHN J. KELLEY, JR., ET AL.,                               Defendants, Appellants.                              __________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. A. David Mazzone, Senior U.S. District Judge]                                         __________________________                              __________________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                              __________________________               Richard E.  Brody, with whom Thomas M.  Elcock and Morrison,               _________________            _________________     _________          Mahoney & Miller were on brief, for appellants.          ________________               Harvey A. Schwartz, with whom  Schwartz, Shaw & Griffith was               __________________             _________________________          on brief, for appellees.                              __________________________                                   August 23, 1995                             __________________________                     SELYA, Circuit  Judge.  This appeal,  which requires us                    SELYA, Circuit  Judge.                           ______________          to  apply the  teachings of  Johnson v.  Jones, 115  S.  Ct. 2151                                       _______     _____          (1995), furnishes  virtually a textbook  model of  the limits  of          interlocutory review  of qualified immunity matters  in the post-          Johnson era.  We conclude that we have jurisdiction over only one          _______          facet of the appeal and, on that facet, we  affirm the challenged          order.          I.  BACKGROUND          I.  BACKGROUND                    This case comes  before us  for the second  time.   See                                                                        ___          Stella  v. Town  of Tewksbury,  4 F.3d  53 (1st  Cir. 1993).   We          ______     __________________          retell the tale  only to the extent  necessary to put the  issues          that we must decide into workable perspective.                    In   Tewksbury,  Massachusetts  (the  Town),  the  five          members  of the Zoning Board of Appeals (the Board) are appointed          for  fixed terms  by  the Town's  governing  body (the  Board  of          Selectmen)  and may be removed during their terms only for cause.          Plaintiffs  Charles Stella,  J.  Peter Downing  and Bruce  Gordon          formerly served  on the Board.   In that capacity,  they voted to          grant several controversial variances.  When residents complained          and the selectmen urged stricter enforcement of the Town's zoning          code,  the Board balked.   Even after the  selectmen instigated a          citizens'  petition demanding  greater  rigor,  and succeeded  in          attracting over  1,000  signatures, the  Board did  not mend  its          ways.                    In October of 1989,  the selectmen created a two-member          subcommittee  to  investigate  the  Board's  performance.     The                                          2          subcommittee  held public  hearings at  which various  complaints          were  aired.    When the  Board  refused  to  change course,  the          selectmen  decided  to clean  house.    After the  Commonwealth's          attorney general  thwarted an  effort by  two selectmen, John  J.          Kelley, Jr.  and William  J. Hurton,  to reduce  the size  of the          Board  from  five  members  to three,  the  selectmen  instituted          proceedings regarding  the possible removal of  Board members for          cause.1   This time, a bare  majority of the selectmen    Kelley,          Hurton, and Thomas Camara    succeeded in ousting members  of the          Board from office on a series of three-to-two votes.2                    In May  1991, three  of the  casualties of  this putsch          filed suit against Kelley, Hurton, Camara, and the  Town pursuant          to 42  U.S.C.   1983 (1988).   Their flagship claim  was that the          selectmen  cashiered them  in retaliation  for their  speech (the          votes they had cast), thus abridging the First Amendment.3                    We  need  not recount  the  murmur  of skirmishes  that          ensued.   It  suffices to  say that  after two  notoriously false                                        ____________________               1The selectmen acted in pursuance of a statute providing  in          relevant  part that  any member  of a  municipal zoning  board of          appeals "may  be removed  for cause  by the  appointing authority          upon  written charges and after a public hearing."  Mass. Gen. L.          ch. 40A,   12 (1975).               2The  selectmen  held  a  separate hearing  for  each  Board          member.  The hearings occurred on various dates from September to          December,  1990.  Separate votes  were taken with  regard to each          ouster.               3Although the complaint contained other statements of claim,          e.g., an  allegation that the selectmen  improperly conducted the          removal hearings, thus depriving the plaintiffs of procedural due          process, the instant appeal relates solely to the First Amendment          claim and, hence, we confine our account to that claim.                                          3          starts (one of which sparked the parties' earlier journey to this          court)  the selectmen  moved  for summary  judgment on  qualified          immunity grounds.  The district court at first granted the motion          but,  on reconsideration, reversed its  field.  The selectmen now          appeal from the order denying summary judgment.          II.  DISCUSSION          II.  DISCUSSION                    We  begin   with  the  architecture  of  the  qualified          immunity  defense.  We  then consider the  teachings gleaned from          Johnson v. Jones.  Finally, we apply the lessons we  have learned          _______    _____          to the problems that confront us.                                          A                                          A                    Public officials accused of civil rights violations may          raise  the  defense of  qualified  immunity as  a  shield against          claims  for damages arising out  of their actions.   If, however,          the official's conduct violated some right emanating from federal          law, and  if the law was  clearly established at the  time of the          infringement, so that an  objectively reasonable actor would have          realized that  his conduct violated the  plaintiff's rights, then          the  qualified immunity  defense is unavailable.   See  Harlow v.                                                             ___  ______          Fitzgerald, 457  U.S. 800, 818-19 (1982);  Buenrostro v. Collazo,          __________                                 __________    _______          973 F.2d 39, 42 (1st Cir. 1992).  Thus, the doctrine of qualified          immunity  limits  a  plaintiff's  damages  against  state  actors          "insofar as  their conduct  does not violate  clearly established          statutory or  constitutional rights of which  a reasonable person          would have known."  Harlow, 457 U.S. at 818.                              ______                    The  meaning   of   the  adjectival   phrase   "clearly                                          4          established," as it operates in the qualified immunity arena, has          not always  been clearly  established.   The Court  has, however,          attempted to explicate the phrase:                    The   contours   of   the   right   must   be                    sufficiently clear that a reasonable official                    would  understand  that  what  he   is  doing                    violates that right.  This is not to say that                    an official action  is protected by qualified                    immunity  unless the very  action in question                    has previously  been held unlawful, but it is                    to say  that in the light  of preexisting law                    the unlawfulness must be apparent.          Anderson  v.  Creighton,  483  U.S.  635,  640  (1987)  (citation          ________      _________          omitted); see also  Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir.                    ___ ____  _______    _______          1993); Rodi v. Ventetuolo, 941  F.2d 22, 30 (1st Cir. 1991).   We                 ____    __________          recently wrote:  "The inquiry into the nature of a constitutional          right for  the purpose of ascertaining  clear establishment seeks          to  discover whether the right was reasonably well settled at the          time  of the challenged conduct  and whether the  manner in which          the  right related  to the  conduct was  apparent."   Martinez v.                                                                ________          Colon, 54 F.3d 980, 988 (1st Cir. 1995).          _____                                          B                                          B                    The qualified immunity defense is, in part, an immunity          from  trial  as well  as  an immunity  from  damage awards.   See                                                                        ___          Siegert v. Gilley, 500 U.S. 226,  232 (1991).  Thus, the  defense          _______    ______          may  be  asserted by  a  pretrial motion  and, if  the  motion is          rejected, immediate appellate review is sometimes available.  See                                                                        ___          Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).          ________    _______                    In Johnson v. Jones,  the Supreme Court cast  new light                       _______    _____          on the  circumstances under  which an immediate  appeal will  lie                                          5          from  the denial  of  a  pretrial  motion asserting  a  qualified          immunity  defense.    The  plaintiff, Houston  Jones,  brought  a          section 1983  action against five police  officers, claiming that          they  used excessive force incident  to his arrest and detention.          Three of the five officers proffered a qualified immunity defense          and moved for summary judgment, contending that they knew nothing          about the alleged beating.  The district court denied the motion,          finding enough circumstantial evidence to raise genuine issues of          material fact anent the movants'  liability.  The movants pursued          an  interlocutory appeal,  arguing that  the record  reflected no          trialworthy questions.  The Seventh Circuit dismissed the appeal,          discerning an  absence of appellate  jurisdiction.  26  F.3d 727,          728 (7th Cir. 1994).                    The Supreme Court granted  certiorari and, resolving  a          split  in the  circuits,4  held 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."  Johnson, 115  S. Ct. at 2159.  Thus, on  the                               _______          one hand,  a district court's  pretrial rejection of  a proffered          qualified immunity  defense remains  immediately appealable as  a          collateral  order to the extent that it  turns on a pure issue of                                        ____________________               4Prior to the Court's decision in Johnson, several courts of                                                 _______          appeals (including this court) permitted  interlocutory review of          pretrial   "evidence  insufficiency"  claims   made  by  official          defendants asserting qualified  immunity defenses, while  several          other  courts  of appeals  refused to  afford  such review.   See                                                                        ___          Johnson,  115 S.  Ct. at  2154 (delineating  the division  in the          _______          circuits and citing representative cases).                                          6          law, notwithstanding the absence of a final judgment.  See id. at                                                                 ___ ___          2158; Mitchell, 472 U.S. at  530.  On the other hand,  a district                ________          court's pretrial rejection of a qualified immunity defense is not          immediately appealable to the  extent that it turns on  either an          issue of  fact or an issue perceived by  the trial court to be an          issue  of fact.   See Johnson,  115 S.  Ct. at  2159.  In  such a                            ___ _______          situation,  the  movant must  await the  entry of  final judgment          before appealing the adverse ruling.  See id.; see also 28 U.S.C.                                                ___ ___  ___ ____            1291 (1988).                    The  bottom  line, then,  is  simply this:    a summary          judgment  order which  determines that  the pretrial  record sets          forth a genuine  issue of  fact, as distinguished  from an  order          that  determines whether  certain given facts  demonstrate, under          clearly established law, a  violation of some federally protected          right, is not reviewable  on demand.  In reaching  this branch of          its holding, the Court abrogated our earlier decision in Unwin v.                                                                   _____          Campbell, 863  F.2d 124,  132 (1st Cir.  1988) (determining  that          ________          appellate jurisdiction  exists  in qualified  immunity cases  for          interlocutory appeals brought to test denials of summary judgment          that turn  on questions  of  alleged evidentiary  insufficiency).          Consequently, we  acknowledge that Unwin  and its progeny  are no                                             _____          longer good law.5                                        ____________________               5The  law sometimes  moves in  strange and  mysterious ways.          Our decision in Unwin  resolved an apparent conflict between  two                          _____          lines of First  Circuit cases:   those that  refused to  consider          "evidence  insufficiency"  issues  regarding  qualified  immunity          defenses on  interlocutory appeal, see, e.g.,  Roure v. Hernandez                                             ___  ____   _____    _________          Colon, 824 F.2d 139,  141 (1st Cir. 1987), and  those that deemed          _____          the  exercise of jurisdiction over such issues to be proper, see,                                                                       ___                                          7                                          C                                          C                    The threshold question for our consideration is whether          Johnson applies  retroactively to cases pending  on direct appeal          _______          on the date the Court  handed down its opinion.  We  hold that it          does.    When  dealing  with   matters  that  govern  a   court's          jurisdiction,  there  is   no  conceivable  bar   to  retroactive          application  of  a  "new,"   judicially  declared  rule.    Thus,          regardless of the fact  that the selectmen filed their  notice of          appeal prior to the Court's decision, Johnson controls.                                                _______                    In  this  case,  Johnson  requires that  we  parse  the                                     _______          complaint.  The plaintiffs claim  that the selectmen removed them          from  the Board because of  their voting patterns,  and that this          unceremonious  dumping  infringed  a  constitutionally  protected          right  (free speech).  The legal framework that applies to claims          of  this genre is settled  beyond hope of  contradiction.  When a          former government employee brings  a First Amendment suit against          his  employer for taking an adverse employment action against him          on the  basis of his speech, the premier precedent is Mt. Healthy                                                                ___________          City  Sch. Dist.  Bd. of  Educ. v.  Doyle, 429  U.S. 274  (1977).          _______________________________     _____          Under the Mt. Healthy paradigm, the plaintiff must show both that                    ___________          his  speech was  constitutionally  protected, and  that it  was a          "substantial" or "motivating" factor for the adverse action taken          against  him.    Id.  at  287.    If  the  plaintiff  meets these                           ___          requirements, the burden of  persuasion shifts, and the defendant                                        ____________________          e.g., Emery v. Holmes, 824 F.2d 143, 147 (1st Cir. 1987).  Having          ____  _____    ______          come  full circle,  we  now reinstate  Roure  as the  law  of the                                                 _____          circuit.                                          8          must then prove  "by a  preponderance of the  evidence" that  the          employment action was not  affected by the speech, that  is, that          the  employer would  have  acted  in  the  same  way  toward  the          plaintiff "even in the absence of the protected conduct."  Id.                                                                     ___                    The  plaintiffs'  First  Amendment  claim  tracks  this          model.     They  say,  in   substance,  that  their   votes  were          constitutionally protected,  and that  the selectmen's desire  to          stifle this  "speech" was  the salient factor  in their  removal.          The selectmen  offer a  twofold rejoinder.   They  assert, first,          that  the  plaintiffs' votes  are not  constitutionally protected          speech (or, at least, that  the constitutional protection was not          clearly  established in  1990,  when the  selectmen acted),  and,          second, that the evidence  conclusively shows that the plaintiffs          were ousted  for due cause, namely,  incompetence, dereliction of          duty, and an intransigent refusal to follow the law.                    In denying the selectmen's motion for summary judgment,          the  lower court resolved both of these points in the plaintiffs'          favor; the court  ruled that the plaintiffs'  votes were entitled          to free-speech  protection, and that the plaintiffs  had limned a          trialworthy  question  as to  the  selectmen's  motivation.   The          selectmen challenge this ruling in both its particulars.                                          D                                          D                    The interface  between Johnson and the  two-pronged Mt.                                           _______                      ___          Healthy test  provides an excellent  example of the  newly stated          _______          limits on  appellate  jurisdiction in  respect  to  interlocutory          appeals   from  pretrial  orders   rejecting  qualified  immunity                                          9          defenses.  Under  Johnson, we have  jurisdiction to inquire  into                            _______          the  first of the selectmen's challenges, that is, to examine the          existence vel  non of a  constitutionally protected  right.   See                    ___  ___                                            ___          Johnson, 115 S. Ct.  at 2158.  But  we lack the power  to inquire          _______          into,  or address, the second  of these challenges,  that is, the          fact-based  question of what the evidence does (or does not) show          concerning whether  the selectmen's actions violated the asserted          right   a question that depends, in this case, on the selectmen's          motives in ejecting the plaintiffs from their seats on the Board.          See id. at 2159.          ___ ___                    The initial  question under Mt. Healthy  asks whether a                                                ___________          constitutionally  protected right  is in  play at  all.   This is          essentially  a  legal, not  a factual,  inquiry.   See  Wright v.                                                             ___  ______          Illinois Dep't of Children & Family Servs., 40 F.3d 1492, 1498-99          __________________________________________          (7th  Cir. 1994); Williams v.  Kentucky, 24 F.3d  1526, 1532 (6th                            ________     ________          Cir.),  cert. denied,  115 S. Ct.  358 (1994).   As  the query is                  _____ ______          framed, the  answer to it  does not depend upon  whose account of          the  facts is correct.   Thus, Johnson    which permits immediate                                         _______          review  of the rejection of  a qualified immunity  claim when the          issue appealed  concerns not what  facts the litigants  might (or          might not) be able to prove,  but, rather, whether a given set of          facts  shows a violation of a federally protected right   permits          immediate review of the trial court's order in this respect.  See                                                                        ___          Johnson, 115  S. Ct. at 2158;  Mitchell, 472 U.S. at  528.  Since          _______                        ________          appellate  jurisdiction  exists to  this  extent,  we proceed  to          examine the selectmen's contention on its merits.                                          10                    Basically, the  selectmen maintain  that the  speech at          issue  here   votes cast  by public officials   is  not a form of          speech  protected by  the  First Amendment.    We do  not  agree.          Voting   by  members  of   municipal  boards,   commissions,  and          authorities  comes  within  the  heartland  of  First   Amendment          doctrine,  and   the  status   of  public  officials'   votes  as          constitutionally   protected   speech   was  established   beyond          peradventure of doubt at the time the selectmen defenestrated the          plaintiffs.                    The  dispositive  precedent  on  these  points  is  our          opinion in Miller v. Town of Hull, 878 F.2d 523 (1st Cir.), cert.                     ______    ____________                           _____          denied, 493 U.S. 976 (1989).  In Miller, a section 1983 case, the          ______                           ______          municipality's board of selectmen allegedly forced the removal of          certain  elected members  of  the  Hull  Redevelopment  Authority          because of  the latter's  support for construction  projects that          the  selectmen opposed.  See id. at  526-28.  There, as here, the                                   ___ ___          selectmen attempted to  justify the ouster on grounds  of neglect          and   inefficiency.    See  id.   at  528.     Following  a  jury                                 ___  ___          determination  that  the  plaintiffs  were  dismissed  for  their          political  opinions,  and  not  for  the  reasons  cited  by  the          selectmen, the  defendants appealed.   They averred,  inter alia,                                                                _____ ____          that   the  votes  cast  by   the  plaintiffs  did  not  comprise          constitutionally  protected  speech.    See id.  at  532-33.   We                                                  ___ ___          rejected this asseveration, concluding  that votes cast by public          officials  merit  First  Amendment  protection.    Judge  Bownes,          writing for this court, stated:                                          11                    [W]e have no difficulty  finding that the act                    of voting on public  issues by a member of  a                    public  agency  or  board  comes  within  the                    freedom  of speech  guarantee  of  the  first                    amendment. .  .  .    There can  be  no  more                    definite expression of opinion than by voting                    on a controversial public issue.          Id. at  532 (footnote omitted).  We went on to hold that "elected          ___          members of  a public agency  may not be  removed from  office for          voting contrary to the wishes of the Board of Selectmen."  Id. at                                                                     ___          533.                    Given this stalwart precedent    which, like fine wine,          has only improved with age    it is beyond serious question  that          votes  cast by  the members  of municipal  boards are  ordinarily          entitled to  First Amendment protection, and  that this protected          status was clearly established  prior to the date of  the present          denouement.6  Thus, unless some distinctive feature  of this case                                        ____________________               6Indeed, we reached this precise conclusion in Miller:                                                              ______                         We  find  that  in  the  light  of  pre-                    existing  law,  the unlawfulness  of removing                    plaintiffs from  their positions . . . should                    have been apparent  to defendants. . .  .  At                    the  time the  removals were  effected, there                    was  firmly  embedded  in our  constitutional                    fabric   the    principle   that   government                    employees could not be discharged for reasons                    that  infringed  on the  employee's  right of                    freedom of speech.                                   *      *      *                         A  reasonable  member  of  the  Board of                    Selectmen would have understood  that removal                    of the members of the  [Authority] for voting                    as they  did, was  an egregious violation  of                    plaintiffs'  first amendment  right.  .  .  .                    There is  no basis  for defendant's  claim of                    qualified immunity.                                          12          snatches it from Miller's precedential orbit, the plaintiffs have                           ______          satisfied Mt.  Healthy's first prong.   See Rankin  v. McPherson,                    ____________                  ___ ______     _________          483 U.S. 378, 383 (1987) ("It is clearly established that a State          may  not discharge  an employee  on a  basis that  infringes that          employee's  constitutionally  protected  interest  in  freedom of          speech.");  Perry  v.  Sindermann,   408  U.S.  593,  597  (1972)                      _____      __________          (similar).                                          E                                          E                    The  selectmen labor  to  distinguish  Miller in  three                                                           ______          ways, but to  no avail.  First,  they posit that  Miller involved                                                            ______          the removal of  elected officials whereas this  case involves the                          _______          removal  of appointed officials.  This is a distinction without a                      _________          difference.   The selectmen  have offered no  plausible rationale          for  variable treatment, and  no language in  Miller supports the                                                        ______          conclusion that the First  Amendment right at issue applies  less          broadly  to  appointed  officials   as  contrasted  with  elected          officials.  We, therefore,  decline the defendants' invitation to          create a wholly artificial dichotomy.                    Second, the selectmen observe  that the language of the          relevant removal statutes is not identical.  This is true  as far          as it goes, but it does not go very  far.  The applicable statute          in Miller  allowed removal  of agency members  for "inefficiency,             ______          neglect of  duty or  misconduct in office."   Mass.  Gen. L.  ch.          121B,     6 (1969).   Here,  the  applicable statute  permits the          removal  of Board members "for cause."   Mass. Gen. L. ch. 40A,                                          ____________________          Miller, 878 F.2d at 534 (citations omitted).          ______                                          13          12 (1975).   Once again,  the selectmen have  advanced no  cogent          reason  why  these  slight  variances in  terminology  warrant  a          significant  dilution  of  the  First Amendment  protection  that          safeguards votes  cast by  officials who  are subject to  removal          under section 12.                    The selectmen  reserve their most  impassioned rhetoric          for  their protest that the  votes at issue  here were "illegal,"          and that the illegality  somehow stripped away the constitutional          protection  that otherwise  would  have attached.7    We are  not          convinced.   This argument is  merely a back-door  approach to an          examination   of  the  defendants'   reasons  for  banishing  the          plaintiffs   a topic that, under current circumstances, cannot be          broached  on  interlocutory  appeal.    See  text  infra.    And,                                                  ___        _____          relatedly,  the district  court rejected  this argument  on fact-                                                                      _____          based  grounds; since  Johnson precludes  us from  inquiring into          _____                  _______          factual controversies  on an  interlocutory appeal,  see Johnson,                                                               ___ _______                                        ____________________               7This argument uses as a vaulting pole a footnote in Miller,                                                                    ______          878 F.2d at 533  n.14, in which Judge Bownes quoted United States                                                              _____________          v. City of Yonkers, 856 F.2d  444, 457 (2d Cir. 1988) (subsequent             _______________          history omitted as irrelevant),  to the effect that "just  as the          First  Amendment would  not  permit [council  members] to  incite          violation  of federal law, it does not permit them to take action          in violation  of such  law."  Yonkers  is inapposite here.   That                                        _______          case involved members of a city council who refused to cast votes          necessary to effectuate a federal court decree.   See id. at 452.                                                            ___ ___          The  recalcitrant  council  members  tried  to  raise  the  First          Amendment as a shield against the federal court's order.  See id.                                                                    ___ ___          at  457.    On appeal,  the  Second  Circuit  balanced the  First          Amendment  claims  against  "the  public  interest  in  obtaining          compliance    with   federal   court    judgments   that   remedy          constitutional  violations," and  found  that  enforcing  federal          court  orders   "unquestionably  justifies  whatever   burden  on          expression has occurred."   Id.  It is readily  apparent that the                                      ___          situation in Yonkers has no known parallel in Tewksbury.                       _______                                          14          115  S.  Ct. at  2159,  we  cannot  undertake here  and  now  the          factbound delving  into illegality that the  selectmen's argument          necessarily entails.                    In sum,  we have jurisdiction to  hear an interlocutory          appeal from  a  pretrial order  denying summary  judgment on  the          basis  of qualified  immunity  to  the  extent  that  the  appeal          challenges the trial court's  legal determination that votes cast          by  members of  a  local zoning  board comprise  constitutionally          protected speech.  Exercising this jurisdiction, we find that the          defendants' efforts  to deflect  the Miller rule  are unavailing.                                               ______          Consequently, we hold that  the votes cast by the  plaintiffs, in          their capacity as Board members, are entitled to protection under          the  First  Amendment.   Since the  law  from which  this holding          prescinds was  clearly established in 1990,  the district court's          refusal  to  grant  summary judgment  on  this  ground  cannot be          faulted.                                          F                                          F                    The second prong of  the Mt. Healthy paradigm addresses                                             ___________          whether or not the  constitutionally protected speech amounted to          a  "substantial"  or  "motivating"  factor  in  the  decision  to          terminate the plaintiffs qua Board members.  See Mt. Healthy, 429                                   ___                 ___ ___________          U.S. at  287.  When this  appeal was taken on  February 27, 1995,          Unwin reflected the law of this circuit, and, thus, we would have          _____          entertained  an  interlocutory  appeal  of the  district  court's          determination  that  the amassed  evidence  sufficed  to raise  a          trialworthy  issue.    Johnson,  however,  demands  a   different                                 _______                                          15          outcome.  Although  the selectmen  tell a plausible  tale to  the          effect that  they ousted the  plaintiffs for dereliction  of duty          rather than  on speech-related  grounds, that tale  is factbound.          The district court, in  declining to grant the motion  for brevis                                                                     ______          disposition, did so on the basis that the summary judgment record          contained  enough  evidence  to  raise  triable  issues  of  fact          concerning the selectmen's motivation.  While the selectmen claim          that  this  decision  is  deeply flawed,  Johnson  bars  pretrial                                                    _______          appellate review of such "evidentiary insufficiency" claims.  See                                                                        ___          Johnson,  115 S. Ct. at 2159 (holding 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").   Indeed,  Justice Breyer  anticipated this          very type of circumstance, and made it clear that such cases fell          within the class of  cases in which an interlocutory  appeal does          not lie.  See id. at 2158 (explaining that the jurisdictional bar                    ___ ___          extends  to  "constitutional tort  cases  .  . .  [that]  involve          factual controversies about, for example, intent").                    Accordingly,   we  may   go  no   further.     We  lack          jurisdiction to  review, on an interlocutory  basis, the district          court's finding that there is a genuine factual dispute regarding          a substantive  element of  the plaintiffs'  constitutional claim,          namely,  the  selectmen's  actual  motivation   in  removing  the                                          16          plaintiffs from office.8          Affirmed.          Affirmed.          ________                                        ____________________               8We  see no anomaly in  our determination that  one facet of          the  defendants' appeal  passes Johnson  muster though  the other                                          _______          facet  does  not.    Indeed,  the  Court  anticipated  that  such          schismatic  situations would develop.  See Johnson, 115 S. Ct. at                                                 ___ _______          2159.                                          17
