     Case: 13-40810       Document: 00512586995         Page: 1     Date Filed: 04/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
                                       No. 13-40810                              April 7, 2014
                                                                               Lyle W. Cayce
JANET CARLOW,                                                                       Clerk


                                                  Plaintiff - Appellee
v.

DANIEL RIVERA; ROBERT CRAMER; MARK CAZALAS,

                                                  Defendants - Appellants




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CV-146


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       This interlocutory appeal, by Daniel Rivera, Robert Cramer, and Mark
Cazalas, stems from Janet Carlow’s 42 U.S.C. § 1983 action, against them and
Judy Sutton, her supervisors at the state-run Corpus Christi State Supported
Living Center, for the claimed violation of her First Amendment right to free
speech. (Sutton was dismissed through summary judgment.) Carlow contends
she was not considered for a promotion and, later, was terminated, because she




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 13-40810

had spoken on matters of public concern. (Cramer is the only alleged decision-
maker for the failure-to-promote claim.)
      Defendants moved for summary judgment, asserting, inter alia, they are
entitled to qualified immunity. The district court granted summary judgment
for Sutton and Cramer against the retaliatory-termination claim.          Order
Granting in Part and Denying in Part Defs.’ Mot. for Summ. J. at 14–15,
Carlow v. Rivera, No. 2:12-CV-146 (S.D. Tex. 1 July 2013). On the failure-to-
promote claim, the court found genuine disputes of material fact regarding
whether Carlow timely and properly submitted her application and Cramer’s
motive for failing to consider it. Id. at 11–12. For the retaliatory-termination
claim against Rivera and Cazalas, the court found a genuine dispute of
material fact regarding “whether [Carlow] would have been terminated if she
had not spoken out on matters of public concern”. Id. at 16.
      Appellants contend the district court determined improperly they were
not entitled to qualified immunity. Under 28 U.S.C. § 1291, this court has
jurisdiction to review the district court’s denial of qualified immunity as “a
collateral order capable of immediate review”. E.g., Club Retro, LLC v. Hilton,
568 F.3d 181, 193–94 (5th Cir. 2009). That jurisdiction, however, is “severely
curtailed” and “restricted to determinations of question[s] of law and legal
issues”. Id. at 194 (alteration in original) (citation and internal quotation
marks omitted). “Where . . . the district court finds that genuinely disputed,
material fact issues preclude a qualified immunity determination, this
[appellate] court can review only their materiality, not their genuineness.”
Manis v. Lawson, 585 F.3d 839, 842 (5th Cir. 2009) (citation omitted). A factual
issue is material if it “must be resolved to make the qualified immunity
determination”. Id. at 843 (citation omitted); Gragert v. Waybright, 423 F.
App’x 428, 431 (5th Cir. 2011) (stating fact is material if it might affect the


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                                  No. 13-40810

action’s outcome).    Whether genuine factual disputes are material to the
question of qualified immunity is reviewed de novo. Manis, 585 F.3d at 843.
      For summary judgment, the record and evidence are viewed “in the light
most favorable to the nonmovant, with all factual inferences made in the
nonmovant’s favor”. Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489
(5th Cir. 2001) (citations omitted).        Once a government official invokes
qualified immunity, however, the burden of proof shifts to plaintiff to show: (1)
“a violation of a clearly established constitutional right” and (2) “genuine issues
of material fact concerning the [objective] reasonableness” of the official’s
conduct, “under clearly established law existing at the time of the incident”.
Id. at 490 (citations omitted).
      Appellants do not dispute Carlow has asserted a violation of a clearly-
established-constitutional right; instead, they contend their actions were
objectively reasonable, based on their “knowledge, perceptions, and policies at
the time” of the adverse action. Gonzales v. Dall. Cnty., Tex., 249 F.3d 406, 412
(5th Cir. 2001) (citation omitted).     Cramer contends he did not consider
Carlow’s application because he never received it. Rivera and Cazalas contend,
regardless of her protected speech, Carlow would have been terminated based
on violations of agency policy.
      Generally, for an interlocutory appeal concerning the summary-
judgment denial of qualified immunity, this court has jurisdiction to determine
“the purely legal question whether a given course of conduct would be
objectively unreasonable in [the] light of clearly established law”. Charles v.
Grief, 522 F.3d 508, 511 (5th Cir. 2008). When a district court determines
genuine disputes of material fact prevent a determination of that question,
however, “we lack jurisdiction over such appeals of fact-based denials”. Id. at
516. This limited jurisdiction necessarily means “officials may sometimes be
required to proceed to trial even though the ultimate resolution of those factual

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disputes may show that they are entitled to qualified immunity from liability”.
Kinney v. Weaver, 367 F.3d 337, 346 n.8 (5th Cir. 2004) (en banc).
      Here, genuine disputes of material fact identified by the district court
are material to Appellants’ reasonableness, vel non. Regarding the failure-to-
promote claim, and construing all factual inferences in Carlow’s favor, the
factual question regarding the timeliness and completeness of her application
raises a material fact issue on whether Cramer received the application, but
failed to consider it. Regarding the retaliatory-termination claim, Carlow
disputed all allegations in her notice of termination and provided evidence that
Rivera and Cazalas had knowledge of, and animus toward, her protected
speech, presenting a material fact issue on the motive for her termination.
      Accordingly, this court lacks jurisdiction for this appeal. Therefore, it is
DISMISSED.




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