                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 15, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                             FOR THE TENTH CIRCUIT


    RICHARD PHILLIPS,

                Plaintiff-Appellee,

    v.                                                 No. 09-6093
                                               (D.C. No. 5:07-CV-00668-D)
    JOHN DALE, in his individual                      (W.D. Okla.)
    capacity,

                Defendant-Appellant,

          and

    JEFFERSON COUNTY BOARD
    OF COUNTY COMMISSIONERS,
    of the County of Jefferson State of
    Oklahoma,

                Defendant.


                             ORDER AND JUDGMENT *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Richard Phillips filed a 42 U.S.C. § 1983 action against John Dale, alleging

that Mr. Dale terminated his employment in violation of his First Amendment

right to free speech. 1 Mr. Dale moved for summary judgment on the merits of

Mr. Phillips’ claim, arguing that Mr. Phillips could not meet his burden of

establishing a prima facie case of retaliation for exercising his First Amendment

rights. Alternatively, Mr. Dale asserted that he was entitled to summary judgment

on Mr. Phillips’ claim based on qualified immunity. The district court denied

Mr. Dale’s motion, concluding that there were genuine issues of material fact in

dispute that precluded summary judgment in his favor. Mr. Dale filed an

interlocutory appeal from the district court’s denial of his motion for summary

judgment on the basis of qualified immunity. 2 We conclude that we lack

jurisdiction over this interlocutory appeal and therefore the appeal must be

dismissed.




1
       Mr. Phillips filed the complaint with another plaintiff, James Underwood,
but Mr. Underwood’s claims were handled separately by the district court and are
not at issue in this appeal.
2
       Mr. Phillips’ complaint also included state law claims against Mr. Dale and
claims against the Board of County Commissioners for Jefferson County. The
district court granted summary judgment in favor of Mr. Dale on the state law
claims and granted in part and denied in part the Board’s motion for summary
judgment on Mr. Phillips’ claims. Those portions of the district court’s decision
are not at issue in this appeal.

                                        -2-
                                I. BACKGROUND

      Mr. Dale was the District 3 County Commissioner for Jefferson County,

Oklahoma. He hired Mr. Phillips as a road foreman in July 2001. Mr. Phillips

remained in that position until Mr. Dale demoted him in September 2006.

Subsequently, Mr. Dale terminated him on November 16, 2006. According to

Mr. Dale, he terminated Mr. Phillips because Mr. Phillips asked a non-county

mechanic to perform certain repairs on a Jefferson county truck without prior

approval. Mr. Phillips denied that he did so and argued that the true reason for

his termination was retaliation for publicly criticizing Mr. Dale. Specifically,

Mr. Phillips alleged that he reported Mr. Dale’s improper treatment of a

Department of Corrections inmate assigned to work on the District 3 road crew;

and he told people in the community that Mr. Dale misused county funds and

resources. Mr. Phillips asserted that he repeated these statements during his July

2006 campaign to replace Mr. Dale as District 3 County Commissioner.

Mr. Phillips was not elected, but because Mr. Dale’s term as County

Commissioner did not expire until the end of 2006, he remained Mr. Phillips’

supervisor until he terminated Mr. Phillips in November 2006.

      Mr. Phillips filed a § 1983 complaint, alleging that Mr. Dale demoted him

and ultimately terminated him in retaliation for exercising his First Amendment

right to freedom of speech. Mr. Dale moved for summary judgment arguing that,

as a matter of law, he had not violated Mr. Phillips’ constitutional rights.

                                         -3-
Alternatively, he asserted that, even if he had violated Mr. Phillips’ rights, the

law was not clearly established with respect to those rights and he was therefore

entitled to qualified immunity.

      Mr. Phillips argued in response that there were material issues of fact in

dispute and, drawing all reasonable inferences in his favor, sufficient evidence

existed from which a jury could infer that Mr. Dale terminated him in retaliation

for exercising his First Amendment rights. As to the qualified immunity issue,

Mr. Phillips incorporated his First Amendment argument, asserted that the right at

issue was clearly established, and argued therefore that Mr. Dale was not entitled

to qualified immunity.

      The district court first considered whether Mr. Phillips could establish a

prima facie case that his First Amendment rights were violated, applying the

five prong Garcetti/Pickering analysis. 3 Viewing the evidence in the light most

favorable to Mr. Phillips, the court ultimately determined that summary judgment

was not proper because (a) there were issues of fact in dispute, (b) there were

credibility issues for the jury to decide, and (c) Mr. Phillips had presented

sufficient evidence to survive summary judgment. The district court then stated:



3
      We adopted the “Garcetti/Pickering analysis” in Brammer-Hoelter v. Twin
Peaks Charter Academy, 492 F.3d 1192, 1202-03 (10th Cir. 2007), which reflects
the combined reasoning of two Supreme Court cases: Pickering v. Board of
Education, 391 U.S. 563 (1968), and Garcetti v. Ceballos, 126 S. Ct. 1951
(2006).

                                          -4-
“With regard to [Mr.] Dale’s qualified immunity argument, material fact issues

also preclude summary judgment. [Mr.] Dale’s argument focuses on the

contention that [Mr.] Phillips cannot, as a matter of law, show that a

constitutional violation occurred. Because the court has concluded that material

fact disputes preclude that finding, [this] alternative argument fails.” Aplt. App.

at 400-01. Mr. Dale then filed this interlocutory appeal challenging the district

court’s denial of his request for qualified immunity.

                                 II. DISCUSSION

      “[O]rders denying summary judgment are ordinarily not appealable,” but

we may take “interlocutory jurisdiction over denials of qualified immunity at the

summary judgment stage to the extent that they turn on an issue of law.” Fogarty

v. Gallegos, 523 F.3d 1147, 1153 (10th Cir. 2008) (quotation and alteration

omitted). We may not take jurisdiction at the interlocutory stage, however, over

appeals that challenge the district court’s factual conclusions. Id. at 1154 (“[W]e

are not at liberty to review a district court’s factual conclusions, such as the

existence of a genuine issue of material fact for a jury to decide, or that a

plaintiff’s evidence is sufficient to support a particular factual inference.”).

      Mr. Dale argues that the district court erred in denying him qualified

immunity because Mr. Phillips cannot, as a matter of law, show that a

constitutional violation occurred. Specifically, he argues that the district court

did not correctly apply the five-prong Garcetti/Pickering analysis because

                                          -5-
Mr. Phillips’ speech was made in the course of his official duties; Mr. Phillips’

speech did not involve a matter of public concern; and Mr. Phillips’ alleged

comments were not a substantial or motivating factor in Mr. Dale’s decision to

terminate Mr. Phillips.

      In response, Mr. Phillips asserts the district court “concluded that a

material factual dispute existed in the instant case, precluding summary judgment

and an exact determination of whether or not Defendant was entitled to qualified

immunity,” Aplee. Br. at 5; and this court “‘lack[s] jurisdiction to review a denial

of summary judgment based on qualified immunity if the claim on appeal is based

on disputed facts,’” id. at 3 (quoting Rosewood Servs. v. Sunflower Diversified

Servs., Inc., 413 F.3d 1163, 1165 (10th Cir. 2005)).

      We agree with Mr. Phillips’ assertion that we lack jurisdiction over this

appeal. Although Mr. Dale tries to frame his appeal as a challenge to the district

court’s application of the Garcetti/Pickering analysis, what he is really

challenging is the sufficiency of the evidence underlying the district court’s

analysis. See Aplt. Br. at 21, 24-25, 26-27. Moreover, the district court did not

reach an ultimate legal determination on the question of whether Mr. Phillips’

constitutional rights were violated. Rather, the district court concluded that

disputed issues of fact precluded a legal determination on that question, and that

Mr. Phillips had presented sufficient evidence to reach a jury on his First

Amendment claim. Because of this factual determination, the court further

                                         -6-
concluded that Mr. Dale was not entitled to summary judgment on his qualified

immunity defense. Mr. Dale’s appeal ultimately seeks to challenge the district

court’s factual conclusions, including that there was sufficient evidence for

Mr. Phillips to survive summary judgment; accordingly, we lack jurisdiction to

review his appeal at this interlocutory stage. See Fogarty, 523 F.3d at 1154;

Rosewood, 413 F.3d at 1165; Garrett v. Stratman, 254 F.3d 946, 952 (10th Cir.

2001) (“We must scrupulously avoid second-guessing the district court’s

determinations regarding whether [a plaintiff] has presented evidence sufficient to

survive summary judgment.” (quotation omitted)).

                               III. CONCLUSION

      We DISMISS Mr. Dale’s interlocutory appeal for lack of jurisdiction and

REMAND to the district court for further proceedings.



                                                    Entered for the Court



                                                    Jerome A. Holmes
                                                    Circuit Judge




                                         -7-
