UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30858
CARY GRIFFIN,
Plaintiff-Appellee,
VERSUS
EDWIN EDWARDS, Governor, in his official capacity
as Governor; RAYMOND LABORDE, individually and
in his official capacity as Commissioner of Administration,
Defendants-Appellants.
Appeal from the United States District Court
For the Middle District of Louisiana
(94-CV-568)
April 24, 1997
Before POLITZ, Chief Judge, DeMOSS, Circuit Judge, and JUSTICE,*
District Judge.
PER CURIAM:2
We are faced with an appeal from the district court’s denial
of a motion to dismiss under FED. R. CIV. P. 12(b)(6) based upon the
*
District Judge of the Eastern District of Texas, sitting by
designation.
2
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
defense of qualified immunity. Finding no error, we affirm the
decision of the district court without prejudice to the rights of
the governor and the commissioner to move for summary judgment at
a later date.
BACKGROUND
Cary Griffin filed this suit against the Governor of
Louisiana, Edwin W. Edwards, and the Louisiana Commissioner of the
Division of Administration, Raymond LaBorde (collectively “public
defendants”); and against Ronnie Burke, Gary Burke, Maurice Katz,
David Grier, E. Lee Trichel, Steve Mullen, Brian Patureau, the
Fringe Benefits Management Company, and Colonial Life & Accident
Insurance Company (collectively “private defendants”) seeking
damages pursuant to 42 U.S.C. § 1983.
Griffin contends that all defendants violated his liberty and
property rights under the due process clause of the Fourteenth
Amendment, his “Commerce Clause” right to conduct business, his
rights under the Impairment of Contracts Clause and his free speech
rights under the First Amendment by holding meetings in which the
defendants discussed awarding certain insurance business to
Colonial Life & Accident Insurance Company (“Colonial”) and B&A
Agency, Inc. (“B&A”). Griffin alleges that, after these meetings,
he was unconstitutionally/improperly required to split his
commissions from the sale of insurance policies to state employees
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with B&A. Griffin further alleges that he was improperly removed
as an agent for Colonial after he spoke to the Federal Bureau of
Investigation about these meetings. Griffin also alleges that
defendant Patureau made false and slanderous statements against him
in violation of the Louisiana Civil Code Art. 2315.
Ronnie and Gary Burke are brothers. Ronnie Burke was the
Orleans Parish Assessor and he actively assisted Edwin W. Edwards
with his successful 1991 campaign for Governor of Louisiana. Gary
Burke owned and operated B&A and is a licensed insurance broker.
Griffin contends that, during the meetings in question, methods of
steering the state employees payroll deduction insurance business
to the private defendants as patronage for political support were
discussed and implemented.
Griffin was an authorized sales representative for Colonial.
His relationship with Colonial was defined by a Career Sales
Representative Agreement (“CSRA”). He solicited and sold insurance
policies to various departments and offices of the State of
Louisiana and received a commission on the premiums received by
Colonial in accordance with the CSRA. In furtherance of the
alleged conspiracy, Griffin contends that Colonial withheld one-
third of his commissions earned from the sale of Colonial’s
products to state employees between April 1992 and June 1993.
After he complained about this arrangement, Colonial terminated
Griffin’s contract on May 28, 1993.
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Griffin filed suit on May 31, 1994. On August 30, 1994, all
the defendants filed a joint motion to dismiss for prescription,
lack of subject matter jurisdiction, and failure to state a claim
for which relief can be granted. The district court denied the
defendants’ motion on July 24, 1995. The district court then
amended its order of July 24 and certified the interlocutory order
for appeal to this Court on August 7, 1995.
On August 22, 1995, all defendants filed a joint petition,
pursuant to FED. R. APP. P. 5, for permission to appeal the denial
of the motion to dismiss. This motion was denied by this Court on
October 17, 1995, because the petition was filed more than ten days
after the entry of the district court’s order of August 7. This
Court issued an amended order on November 15, 1995, denying the
defendants’ petition for leave to appeal and withdrawing the order
filed on October 17, 1995. Subsequently, the public defendants
filed their answers to Griffin’s complaint, raising the defense of
qualified immunity.
On June 21, 1996, the public defendants filed a motion to
dismiss pursuant to FED. R. CIV. P. 12(b)(6) on the basis of
qualified immunity. The district court orally denied the motion on
July 24, 1996, and issued a written order memorializing that denial
on August 1, 1996. The district court also denied the defendants’
motion to stay discovery. The public defendants appealed from both
orders.
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The only issue on appeal to this Court is whether the district
court erred in denying the public defendants’ motion to dismiss on
qualified immunity grounds. The appeal of the district court’s
denial of the motion to stay discovery has been withdrawn.
ANALYSIS
Our jurisdiction rests on Mitchell v. Forsyth, 105 S. Ct.
2806, 2817 (1985). In Mitchell, the Supreme Court held that a
district court’s denial of a motion to dismiss on qualified
immunity grounds, to the extent that it turns on an issue of law,
is an appealable final order within the meaning of 28 U.S.C. §
1291, notwithstanding the absence of a final judgment. See also
Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994)
(“[w]hen the issue is purely one of law, denial of such [qualified]
immunity is appealable immediately under 28 U.S.C. § 1291, . . .").
We review a district court’s order denying a motion to dismiss
based upon qualified immunity grounds de novo, taking as true the
well pleaded allegations in the complaint. Foster, 28 F.3d at 428.
To begin this review, we must first determine whether Griffin
has alleged a violation of a constitutional right. Id. at 429.
Next, we must ascertain whether Griffin’s claims set forth specific
facts establishing the violation of a clearly established right.
Id. To establish such a violation, Griffin must assert that he was
intentionally or recklessly deprived of a recognized property or
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liberty interest under the Fourteenth Amendment. See Griffith v.
Johnson, 899 F.2d 1427, 1435 (5th Cir. 1990).
In this case, Griffin relies on alleged depravation of liberty
and property interests under the due process clause of the
Fourteenth Amendment and alleged violations of his First Amendment
right of freedom of speech. Griffin’s claims under the Fourteenth
Amendment are based on the fact that he was required by Colonial to
split, with B&A, his commissions earned from insurance policies
sold to state employees participating in the flexible benefits
plan. Griffin also alleges that the conspiratorial conduct by all
defendants deprived him of his First Amendment right of freedom of
speech and his informer’s privilege because he was fired after
speaking with the F.B.I. about the alleged steering of the state
employee insurance business to the Governor’s political supporters.
The public defendants contend that Griffin failed to allege
sufficient facts to establish that the public defendants violated
a clearly-established constitutional right. Next, the public
defendants argue that Griffin does not have a constitutionally
protected right to earn a certain amount of commissions from the
sale of insurance policies. They note that the only factual
allegation raised by Griffin involves the public defendants’
participation in meetings in which they discussed steering state
insurance business to the private defendants. The public
defendants also assert that these meetings do not establish that
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they intentionally or recklessly sought to remove or significantly
alter Griffin’s protected liberty or property interests. Finally,
the public defendants contend that Griffin failed to allege facts
that they participated in the alleged retaliation against him for
speaking with the F.B.I.
CONCLUSION
After carefully reviewing the briefs, record excepts, relevant
portions of the record, and hearing argument in this case, the
district court’s decision denying the motion to dismiss on the
basis of qualified immunity under FED. R. CIV. P. 12(b)(6) is
AFFIRMED. This affirmance is, however, ordered without prejudice
to the rights of the public defendants to move for summary judgment
on the grounds of qualified immunity at a later date, after such
limited discovery as the district court may deem necessary to
determine whether a genuine issue exists as to the illegality of
the public defendants’ conduct. This process should be completed
in accordance with the procedures set forth in Schultea v. Wood, 47
F.3d 1427 (5th Cir. 1995) (en banc).
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