                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     October 5, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    RACHEL LAWRENCE M OR;
    CHARLES W . W RIGHT, individuals,

               Plaintiffs-Appellees,

    v.                                                 No. 06-6005
                                                 (D.C. No. 04-CV-1088-C)
    O K LA H OMA C O RPO RA TIO N                      (W .D. Okla.)
    COM M ISSION, a state agency,

               Defendant,

         and

    BEN JACKSON; DEE PORTER;
    D EN ISE B OD E; JEFF C LO U D;
    BOB ANTHONY, in their individual
    and official capacities,

               Defendants-Appellants.



                            OR D ER AND JUDGM ENT *


Before M cCO NNELL, BARRETT, and A ND ER SO N, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Defendants Oklahoma Corporation Commission (OCC) and individual

employees or board members of the OCC (Ben Jackson, Dee Porter, Denise Bode,

Jeff Cloud, and Bob Anthony) have filed an interlocutory appeal from the district

court’s denial of summary judgment on the claims of plaintiffs Rachel Lawrence

M or and Charles W . W right under 42 U.S.C. § 1983, Title VII, 42 U.S.C.

§§ 2000e to 2000e-16c, and Oklahoma state law. Because we lack appellate

jurisdiction over the district court’s ruling, we dismiss the appeal.

                                          I.

      W hile employed as attorneys in the general law division of the OCC,

plaintiffs became concerned about the settlement of major cases filed against the

Petroleum Storage Tank Indemnity Fund. They expressed their negative view s to

OCC employees, a legislative staff person, and an FBI agent--even after being

relieved of any responsibility for the cases. M r. W right also supported another

OCC employee in her EEOC charge of discriminatory constructive discharge.

Despite previously positive performance evaluations, both plaintiffs were

investigated, accused of poor job performance and improper use of state computer

equipment, then summarily fired.

      Plaintiffs brought this action, asserting that the terminations infringed upon

their constitutional rights to freedom of speech and due process. Their complaint

also set out conspiracy counts and state claims of wrongful termination in

violation of public policy, defamation, intentional infliction of emotional distress,

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and breach of contract. In addition, M r. W right asserted a Title VII retaliation

claim.

         Defendants sought summary judgment on various grounds. In part, the

individual defendants argued that they were immune from liability under § 1983,

based on the doctrine of qualified immunity. The district court determined that

defendants were not entitled to qualified immunity because “Plaintiffs [had]

offered evidentiary materials demonstrating that, when viewed in the light most

favorable to them, Defendants’ conduct violated their constitutional rights,” and

because plaintiffs’ claims w ere based on “longstanding and precedential”

constitutional case law. Aplt. App. at 1511. In this appeal, the individual

defendants challenge the district court’s rejection of their qualified immunity

defenses. Plaintiffs have filed a motion to dismiss the appeal for lack of

jurisdiction.

                                            II.

         The threshold question, raised by plaintiffs, is whether 28 U.S.C. § 1291

authorizes this court to exercise jurisdiction over the individual defendants’

appeal. Section 1291 provides this court with

         appellate jurisdiction over “final decisions” of the district courts.
         Under the “collateral order” doctrine, some district court orders are
         considered “final” even though they are entered before final
         judgment has entered in the case. One such collateral order
         permitting interlocutory appeal is an order denying qualified
         immunity. A denial of qualified immunity is only immediately



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      appealable, however, to the extent the district court’s decision turns
      on an abstract issue of law.

Walker v. City of Orem, 451 F.3d 1139, 1154 (10th Cir. 2006) (citations omitted).

      “Thus, an appellate court may examine on interlocutory appeal the purely

legal question of whether the facts alleged by plaintiff support a claim of

violation of clearly established law.” Robbins v. Wilkie, 433 F.3d 755, 761

(10th Cir.), petition for cert. filed, 75 U.S.L.W . 3074 (U.S. Aug. 11, 2006)

(No. 06-219). But it “may not . . . review questions of evidentiary sufficiency on

interlocutory appeal.” Id. “[A] district court order denying qualified immunity is

not immediately appealable insofar as the order determines plaintiff’s claims are

supported by sufficient evidence in the record or disputed issues of material fact

exist which preclude summary judgment.” Id. In other words, we lack

jurisdiction “if our review would require second-guessing the district court’s

determinations of evidence sufficiency.” M edina v. Cram, 252 F.3d 1124, 1130

(10th Cir. 2001).

      Applying these principles to the case at hand, we conclude that we lack

jurisdiction to consider the individual defendants’ arguments. At base, they

contend the district court failed to recognize that the facts do not demonstrate a

violation of plaintiffs’ clearly established constitutional rights. 1 Despite their

1
      In a sub-argument, the individual defendants claim that the district court
improperly “refused to rule” on their motion to strike portions of plaintiffs’
responsive filings. Aplt. Br. at 59-60. At best, this statement is overblown.
                                                                       (continued...)

                                          -4-
efforts to express their appellate issues as pure questions of law, the individual

defendants are essentially attacking the district court’s determination on

sufficiency of the evidence. As a result, we may not exercise jurisdiction over

their appeal.

      Plaintiffs’ motion is granted. The appeal is DISM ISSED for lack of

jurisdiction.

                                                       Entered for the Court


                                                       Stephen H. Anderson
                                                       Circuit Judge




1
 (...continued)
In a separate order (which defendants failed to attach to their brief in compliance
with 10th Cir. R. 28.2(A)(1)), the district court plainly considered and denied
the motion. Aplt. App. at 1506-07.

       Also, as supplemental authority in support of their case, defendants have
submitted the recent case of Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006),
in which the Supreme Court held that public employees’ speech is not entitled to
First Amendment protection if they were speaking pursuant to official job-related
duties. The district court was not presented with an ordered discussion of the
facts in light of the Garcetti holding. “[I]t is w ell-settled that this court generally
does not review matters raised for the first time on appeal.” Burrell v. Arm ijo,
456 F.3d 1159, 1170 (10th Cir. 2006). If defendants choose to do so, they may
raise this issue in the district court.

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