IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40814 Summary Calendar

RICHARD YARBROUGH, ET AL,

Plaintiffs,

RICHARD YARBROUGH,

Plaintiff-Appellee,

versus

CITY OF SANGER, ET AL,

Defendants,

LARRY KEESLER; BENNY ERWIN,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:98-CV-24 -------------------- February 7, 2002 Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:1

Sanger, Texas, Police Chief Benny Erwin and City Administrator

Larry Keesler seek to appeal the district court’s denial of their

motion for summary judgment based on their assertion that they are

qualifiedly immune from Richard Yarbrough’s

claim

that they discharged him from the police force in violation of his

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. First Amendment rights. Although directed to include in their

brief an argument regarding this court’s appellate jurisdiction,

they have failed to do so.

Federal courts of appeal have jurisdiction of "appeals from

all final decisions of the district courts."

.

“[A] district court’s denial of a claim of law, is an appealable

‘final decision’ within the meaning of

notwithstanding the absence of a final judgment.” Mitchell v.

Forsyth,

(1985); see Gonzales v. Dallas County,

Texas,

(5th Cir. 2001).

However, a defendant invoking a qualified-immunity defense may

not appeal a district court’s denial of summary judgment insofar as

the order determined whether the record sets forth a genuine issue

of fact for trial. Johnson v. Jones,

(1995).

Nevertheless, this court retains jurisdiction to determine as a

matter of law whether the defendants are entitled to qualified

immunity, after accepting all of the plaintiff’s factual

allegations as true, by determining whether these facts show that

the defendants’ conduct was objectively reasonable under clearly

established law. Behrens v. Pelletier,

(1996).

The jurisdictional question, then, is “whether the record reflects

undisputed facts upon which [the court] may make a determination of

the legal question before [it]: whether a reasonable public

official could have believed, in the light of clearly established

law, that the specific conduct of discharging [Yarbrough] did not

violate his constitutional rights.” Gonzales,

.

2 Taking Yarbrough’s allegations as true, the record is

insufficient to enable this court to conclude as a matter of law

that Yarbrough was in fact or could reasonably have been fired for

insubordination and/or retention of overpayments inadvertently made

to him without reference to the other events preceding his

termination, including his protected speech. Compare Gonzales,

. Whether Yarbrough’s comments regarding Chief Erwin

and Mayor Coker were a substantial or motivating factor in the

defendants’ decision to terminate him is an unresolved factual

dispute material to the question of the objective reasonableness of

the defendants’ conduct which both precluded summary judgment and

deprives this court of appellate jurisdiction. See Johnson,

; Behrens,

; Gonzales,

; see also Lukan v. North Forest Indep. Sch. Dist.,

(5th Cir. 1999); Click v. Copeland,

(5th

Cir. 1992). The appeal is therefore DISMISSED for lack of

jurisdiction.

3