stating that established constitutional right.” Shipp, 234 we have jurisdiction to review only “legal” is- F.3d at 911.2 sues under the collateral order doctrine and A plaintiff who states a First Amendment noting that “[a]n order is not ‘legal’ where it claim sufficiently alleges the violation of a resolves a fact-related dispute of ‘evidence clearly established right. Kennedy, 224 F.3d at sufficiency.’”
How later courts described this case
- stating that established constitutional right.” Shipp, 234 we have jurisdiction to review only “legal” is- F.3d at 911.2 sues under the collateral order doctrine and A plaintiff who states a First Amendment noting that “[a]n order is not ‘legal’ where it claim sufficiently alleges the violation of a resolves a fact-related dispute of ‘evidence clearly established right. Kennedy, 224 F.3d at sufficiency.’”
- stating that verbal enunciation of political views is not required to receive First Amendment protection; political association is sufficient in itself
- “If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial.”
Written by the judges who cited it.
The opinion
EMILIO M. GARZA, Circuit Judge,
specially concurring:
I concur, but write separately to elaborate on the majority’s statement that “[ejven the existence of disputed issues of material fact does not preclude review where the district court’s actions were based in law.” 1 The statement simply stands for the proposition that we can consider an unsuccessful summary judgment motion that asserts qualified immunity when the defendant takes the genuine issues of material fact off the table — by accepting the plaintiffs version of the facts — and thereby leaves us with nothing to review but legal issues. See Behrens v. Pelletier; 516 U.S. 299, 313 , 116 S.Ct. 834, 842 , 133 L.Ed.2d 773 (1996) (“Johnson [v. Jones, 515 U.S. 304, 319 , 115 S.Ct. 2151, 2159 , 132 L.Ed.2d 238 (1995),] permits [the defendant] ... to ‘claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of objective reasonableness’ ”); see also Colston v. Barnhart, 146 F.3d 282, 284 (5th Cir.) (discussing Behrens) (explaining the difference between “genuineness” and “materiality” in the context of qualified immunity), cert. denied, -U.S. -, 119 S.Ct. 618 , 142 L.Ed.2d 557 (1998); Coleman v. Houston Independent School District, 113 F.3d 528, 536 (5th Cir.1997) (Emilio M. Garza, J., specially concurring) (approving of the grant of summary judgment based on qualified im *370 munity because the factual dispute concerned an immaterial issue).
Accordingly, I concur.
. The majority's statement re-affirms what some of our earlier panels have said. See Hare v. City of Corinth, Miss., 135 F.3d 320, 324 (5th Cir.1998) ("The denial of summary judgment on qualified immunity is, of course, immediately appealable, even when a genuine issue of material fact exists, when the order determines a question of law.”); Wren v. Towe, 130 F.3d 1154, 1157 (5th Cir.1997) ("A district court's denial of summary judgment is not immune from interlocutory appeal simply because the denial rested on the fact that a dispute over material fact issues exists.”), cert. denied, - U.S. -, 119 S.Ct. 51 , 142 L.Ed.2d 40 (1998); Naylor v. State of La., Department of Corrections, 123 F.3d 855, 857 (5th Cir.1997) ("to the extent that a district court order denying qualified immunity determines an issue of law, such an order is ap-pealable in spite of the existence .of genuine issues of material fact”); Coleman v. Houston Independent School District, 113 F.3d 528, 531 (5th Cir.1997) ("Insofar as the district court order determines a question of law, . . . the denial of qualified immunity is appeal-able, notwithstanding the existence of a genuine issue of material fact.”).