The second prong of the
Mt. Healthy paradigm addresses whether or not the constitutionally protected speech amounted to a “substantial” or “motivating” factor in the decision to terminate the plaintiffs
qua Board members. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 575. When this appeal was taken on February 27, 1995,
Unwin reflected the law of this circuit, and, thus, we would have entertained an interlocutory appeal of the district court's determination that the amassed evidence sufficed to raise a trialworthy issue.
Johnson, however, demands a different outcome. Although the selectmen tell a plausible tale to the effect that they ousted the plaintiffs for dereliction of duty rather than on speech-related grounds, that tale is factbound. The district court, in declining to grant the motion for
brevis disposition, did so on the basis that the summary judgment record contained enough evidence to raise triable issues of fact concerning the selectmen's motivation. While the selectmen claim that this decision is deeply flawed,
Johnson bars pretrial appellate review of such “evidentiary insufficiency” claims.
See Johnson, 515 U.S. at ––––, 115 S.Ct. at 2159 (holding that “a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial”). Indeed, Justice Breyer anticipated this very type of circumstance, and made it clear that such cases fell within the class of cases in which an interlocutory appeal does not lie.
See id. at ––––, 115 S.Ct. at 2158 (explaining that the jurisdictional bar extends to “constitutional tort cases ... [that] involve factual controversies about, for example, intent”).