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Click here for the full text of this decision FACTS:Shelton Charles sent e-mails to members of the legislative committee that had oversight of the Texas Lottery Commission, alleging, inter alia, violations of the Texas Open Records Act, misuse of state funds and misconduct by commission management. Charles sent a copy of his last such e-mail to commission officials. Two days later, Gary Grief directed Charles to meet with his immediate supervisor and a human resources manager to answer questions regarding the e-mail. When those two began to question Charles about the e-mails, he requested that the commission’s questions be put in writing so that he could respond in writing. According to Charles, a representative of the commission agreed to do so. That same day, however, Grief appeared unannounced in Charles’ office and fired him on the spot, handing Charles a written statement to the effect that he was being fired for insubordination, specifically for his “refusal to respond to the direct request from [his] immediate supervisor.” After Charles sued Grief and the commission for, inter alia, employment retaliation in violation of Charles’ constitutional right of free speech, Grief sought dismissal as a defendant on grounds of qualified immunity, which the district court denied, largely on the basis of a magistrate judge’s Report and Recommendation. Like the magistrate judge, the district court held that the summary judgment record, when viewed in the light most favorable to the plaintiff as the nonmovant, established genuine issues of fact. These included: whether Charles was fired for insubordination or for sending the e-mails to members of the state Legislature, and whether was he speaking as a citizen on matters of public concern and interest of the state and was thus entitled to protection of the First Amendment or merely making the statements as a public employee, possibly even pursuant to his official duties as contended by Grief. HOLDING:The court dismissed the appeal. Subject to a few narrow exceptions, the court stated, federal appellate courts do not have jurisdiction to hear appeals of interlocutory rulings of trial courts. One such exception grants federal courts of appeals jurisdiction to entertain an appeal from the interlocutory denial of a state actor’s motion to be dismissed, such as in a suit brought under 42 U.S.C. �1983. But the court noted that only denials that turn on legal issues, such as the materiality of a disputed fact and not those that turn on factual issues, such as the trial court’s finding of the presence of a genuinely disputed issue of fact are immediately appealable. In this case, the court stated, the district court examined the summary judgment evidence and “very clearly and expressly held that the admittedly material fact questions � whether Charles was fired for sending the e-mails and, if so, whether their content addressed matters of public concern � are genuinely disputed.” Given the clear, unequivocal and emphatic pronouncement of the district court that it was denying qualified immunity because Charles had borne his burden of demonstrating the presence of genuine issues of fact, the 5th Circuit held that it lacked jurisdiction to consider an interlocutory appeal. “Every argument in [Grief's] counsel’s brief to the court,” the court stated, “might be correct and might ultimately prevail: They simply cannot be heard at this juncture.” OPINION:Wiener, J.; Wiener, Benavides and Prado, JJ.

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