Case: 10-60848 Document: 00511648022 Page: 1 Date Filed: 10/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2011
No. 10-60848 Lyle W. Cayce
Clerk
LESLIE B. LAMPTON,
Plaintiff-Third Party Defendant-Appellant
v.
OLIVER E. DIAZ, JR.; JENNIFER DIAZ,
Defendants-Third Party Plaintiffs-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:
In this declaratory relief action, Plaintiff-Third Party Defendant-Appellant
Leslie B. Lampton appeals the district court’s denial of his motion for summary
judgment on grounds of immunity. We REVERSE the district court’s order and
REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
This action arises from a complaint filed in 2006 with the Mississippi
Commission on Judicial Performance (the “Commission”) against Oliver Diaz,
then a Mississippi Supreme Court justice. Prior to the complaint, Defendants-
Third Party Plaintiffs-Appellees Oliver Diaz and his wife, Jennifer Diaz, (the
“Diazes”) were prosecuted in federal court on various fraud, bribery, and tax
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evasion charges. Oliver Diaz was ultimately acquitted, and Jennifer Diaz plead
guilty to tax evasion. After the cessation of the criminal prosecution, the
prosecuting U.S. Attorney, Dunnica Lampton, relative to Plaintiff-Third Party
Defendant-Appellant Leslie B. Lampton, filed the above-mentioned complaint
with the Commission. According to the Diazes, Dunnica Lampton unlawfully
attached the Diazes’ tax and other financial records obtained during the criminal
investigation to the complaint.
Leslie Lampton served as a member of the Commission and participated
in the Commission’s investigation of Mr. Diaz. Although, in December 2008, the
Commission dismissed the complaint, counsel to the Diazes sent Leslie Lampton
two letters, on January 20, 2009, threatening legal action based on his role in
the investigation. Leslie Lampton responded by filing a complaint in the Circuit
Court of Madison County, Mississippi, on January 30, 2009, seeking a
declaratory judgment of immunity from suit for conduct arising out of his duties
with the Commission. The suit was not initially filed under seal and revealed
the existence of the Commission’s investigation of Mr. Diaz.
On May 4, 2009, Mrs. Diaz filed counterclaims against Leslie Lampton,
asserting various federal and state law causes of action arising, in relevant part,
from Leslie Lampton’s alleged disclosure of the Commission’s confidential
investigation. Mrs. Diaz also asserted claims against various third-party
defendants, including Dunnica Lampton. On June 3, 2009 Dunnica Lampton,
as a federal officer, removed the action to federal court pursuant to 28 U.S.C.
§ 1442. On August 26, 2009, Mr. Diaz similarly filed counterclaims against
Leslie Lampton.
On October 30, 2009, Leslie Lampton moved for summary judgment on the
Diazes’ counterclaims on the ground that, inter alia, he enjoyed immunity under
both federal and state law. On May 7, 2010, the district court found Leslie
Lampton enjoyed absolute and qualified immunity from the Diazes’ federal
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claims, and further found Leslie Lampton enjoyed immunity from the Diazes’
state law claims, under a state statute providing immunity for members of the
Commission, for all but one of his alleged wrongful acts.
The district court found that Leslie Lampton, in filing a declaratory relief
action asserting a claim for immunity, was acting in an individual capacity, and
not as a member of the Commission, and therefore did not enjoy immunity for
filing said action. Accordingly, the district court denied summary judgment on
the Diazes’ counterclaims arising from his filing of the declaratory relief action.
On May 21, 2010, Leslie Lampton filed a Rule 59 motion to alter or amend
judgment and for reconsideration, which the district court denied on October 8,
2010. On October 13, 2010, he filed a notice of appeal, seeking review of the
district court’s order denying summary judgment on his assertion of state-law
immunity against claims arising from his filing of the declaratory action, and the
denial of his motion to reconsider that order.
JURISDICTION & STANDARD OF REVIEW
The denial of immunity under Mississippi law, like a denial under federal
law, is appealable under the collateral order doctrine. See Sorey v. Kellett, 849
F.2d 960, 962-63 (5th Cir. 1988) (holding, for purposes of federal collateral order
doctrine, state law governs question whether immunity “is immunity for suit or
merely a defense to liability”; finding question of qualified immunity under
Mississippi law is “properly appealable under the collateral order doctrine”);
Hinds Cnty. v. Perkins, 64 So. 3d 982, 986 (Miss. 2011) (noting “denials of
immunity at the summary judgment stage are reviewed via the interlocutory
appeal process”); Mitchell v. Cty. of Greenville, 846 So. 2d 1028, 1029 (Miss.
2003) (noting absolute immunity “is an entitlement not to stand trial rather than
a mere defense to liability”). Accordingly, this Court has jurisdiction over
Lampton’s appeal.
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“We review denials of summary judgment de novo.” Samuel v. Holmes,
138 F.3d 173, 176 (5th Cir. 1998).1 Summary judgment is proper only when the
movant demonstrates that no genuine issue of material fact exists and that he
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Fed. Ins. Co. v.
Ace Prop. & Cas. Co., 429 F.3d 120, 122 (5th Cir. 2005). A party’s entitlement
to immunity from suit is a question of law. Walter v. Torres, 917 F.2d 1379, 1383
(5th Cir. 1990).
“In order to determine state law, federal courts look to final decisions of
the highest court of the state.” Transcontinental Gas Pipe Line Corp. v. Transp.
Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992). “When there is no ruling by the
state’s highest court, it is the duty of the federal court to determine as best it
can, what the highest court of the state would decide.” Id.
ANALYSIS
Before proceeding to the merits of Leslie Lampton’s appeal, the Court
must dispose of an initial matter. Jennifer Diaz argues Leslie Lampton waived
the arguments he now presents on appeal by failing to present those arguments
to the district court. As the district court’s summary judgment order shows,
however, Leslie Lampton argued before it that he enjoyed immunity under
Mississippi law for his actions, including for filing a suit seeking declaratory
relief , and the district court considered and disposed of such arguments. “[A]n
argument is not waived on appeal if the argument on the issue before the district
court was sufficient to permit the district court to rule on it.” In re Liljeberg
Enters., Inc., 304 F.3d 410, 428 n.29 (5th Cir. 2002); see also Elder v. Holloway,
510 U.S. 510, 516 (1994) (holding party’s failure to present legal authority to
district court did not prevent raising such authority on appeal). Accordingly,
1
The district court’s denial of a Rule 59(e) motion “that is solely a motion to reconsider
a judgment on its merits” is similarly subject to de novo review. See Fletcher v. Apfel, 210 F.3d
510, 512 (5th Cir. 2000).
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Leslie Lampton’s arguments were preserved for appeal and are properly before
this Court.
As noted above, Leslie Lampton appeals the district court’s finding that
he did not enjoy immunity as a member of the Commission, under state statute,
against claims arising from his filing suit for a declaration that he enjoyed said
immunity. That statute, Section 9-19-29 of the Mississippi Code, provides:
All complaints filed pursuant to the provisions of this chapter shall
be absolutely privileged. The commission on judicial performance,
its members, executive director, commission counsel, master or fact
finder, and their assistants, staff and employees shall be immune
from civil suit for any conduct arising out of the performance of their
official duties.
MISS. CODE ANN. § 9-19-29 (2009). The district court found Leslie Lampton, as
a member of the Commission, enjoyed immunity from suit from all the Diazes’
state law claims arising from his work on the Commission. With regard to his
filing suit to obtain a declaration of such immunity, however, the district court
found, in filing such a suit, Leslie Lampton was acting in his individual capacity,
and not as a member of the Commission. The district court thus held his
conduct did not “aris[e] out of the performance of [his] official duties,” see id.,
and, therefore, denied Leslie Lampton’s motion for summary judgment on the
basis of immunity.
In interpreting Section 9-19-29, the district court recognized that the
Section had never been applied in any reported decision by the Mississippi
courts. Consequently, the district court relied on the text of the statute and two
cases interpreting a similar section of the Mississippi code, Section 73-3-345.2
2
Section 73-3-345, relating to complaints against attorneys, provides:
All complaints filed pursuant hereto shall be absolutely privileged, and no
lawsuit predicated thereon may be instituted, and each person, firm,
association, or legal entity filing such a complaint shall be immune from any
civil suit predicated thereon. The board of commissioners, the committee on
complaints, the executive director, the complaint counsel, the complaint
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The cases on which the district court relied, however, are inapposite. In both
such cases, Netterville v. Lear Siegler, Inc., 397 So. 2d 1109 (Miss. 1981), and
Roussel v. Robbins, 688 So. 2d 714 (Miss. 1996), the Mississippi Supreme Court
interpreted the sentence of Section 73-3-345 related to immunity for those who
file a complaint with the Commission, which immunity extends only to suits
“predicated thereon.” See Netterville, 397 So.2d at 1113 (finding complainant
enjoyed immunity from suit alleging libel and slander in complaint; finding
immunity did not extend to communications unnecessary and unrelated to
complaint); Roussel, 688 So. 2d at 721 (finding Section 73-3-345 did not provide
immunity to plaintiff who filed fraud suit against attorney; finding attorney’s
malicious prosecution counterclaims were not “predicated on disciplinary
proceedings,” but, rather, predicated on plaintiff’s suit). Neither Netterville nor
Roussel considered the broader immunity enjoyed by members of the
Commission “for any conduct arising out of the performance of their official
duties.” See MISS. CODE. ANN. §§ 9-19-29, 73-3-345.
Instead, the Court finds instructive Big “2” Engine Rebuilders v. Freeman,
379 So. 2d 888 (Miss. 1980), where the Mississippi Supreme Court interpreted
a provision of Mississippi’s worker’s compensation code providing coverage for
injuries “arising out of” employment. See id. at 889 (discussing MISS. ANN.
CODE. § 71-3-3(b) (1972)). There, the Mississippi Supreme Court read the term
“arising out of” broadly, stating:
The statutory language ‘arising out of’ . . . creates a requisite for
compensability. Broadly, ‘arising out of’ calls for some causal
connection between the employment and the injury. However, the
tribunals, and their assistants, staff and employees shall be immune from civil
suit for any conduct arising out of the performance of their official duties. Every
person shall be immune from civil suit for all of his sworn or written statements
made or given in the course of any investigation, investigatory hearing, formal
hearing or review proceedings and conducted under these disciplinary rules.
MISS. CODE ANN. § 73-3-345 (2011).
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employment need not be the sole cause of the injury; it is sufficient
if it rationally contributes to it.
See id. at 890. Although the statute here at issue here concerns immunity and
not liability, the Court believes Mississippi would provide a similarly broad
construction in determining, for purposes of immunity, what conduct “aris[es]
out of” the performance of the Commission member’s official duties. Mississippi
courts have noted the Commission is an “integral part of the functioning of the
judicial branch of government,” Netterville, 397 So. 2d at 1112, and have
interpreted judicial immunity broadly, granting immunity “even when
[unlawful] acts are in excess of [ ] jurisdiction, and alleged to have been done
maliciously or corruptly,” Vinson v. Prather, 879 So. 2d 1053, 1057 (Miss. App.
Ct. 2004).
The question thus before the Court is whether Leslie Lampton’s suit for
a declaration that he enjoyed immunity from suit threatened for “conduct arising
out of the performance of [his] official duties” as a member of the Commission,
had “some causal connection” and was “rationally contributed to” by Leslie
Lampton’s performance of his official duties on the Commission. So framed, the
Court finds Leslie Lampton’s declaratory relief action was “conduct arising out
of the performance of [his] official duties.”
The Diazes’ letters that prompted Leslie Lampton to seek declaratory
relief plainly threatened suit for his alleged “involvement and procurement of
[the Diazes’] banking and income tax records,” received as part of Dunnica
Lampton’s complaint to the Commission, and for exercising his power as a
Commission member to “bring[ ] charges against [Oliver Diaz].” Such
threatened litigation was clearly for “conduct arising out of the performance of
[Leslie Lampton’s] official duties,” as the district court implicitly found by
dismissing those threatened claims as foreclosed by Section 9-19-29 when they
were raised as counterclaims below. Leslie Lampton’s suit to foreclose that
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threatened action was so directly related to the performance of his official duties,
and to retaining immunity for those duties, that it arose out of the performance
of his official duties as part of the Commission. Simply put, but for Leslie
Lampton’s membership on the Commission, he would not have been threatened
with suit, and he would have enjoyed no immunity from such suit for which to
seek declaratory relief.
Further, a contrary reading would lead to absurd results. If the assertion
of immunity is an individual action that does not arise out of the member’s
official duties, then a member may be sued for conduct squarely immunized by
Section 9-19-29, and he could not raise immunity as a defense, because the
raising of such a defense would subject the member to suit for which he enjoys
no immunity. Such a reading would render Section 9-19-29 a nullity.
Nor does the Court find the fact that Leslie Lampton requested immunity
by filing a declaratory judgment action, and not by raising a defense to a
previously filed suit, renders Section 9-19-29 inapplicable. “[O]ne does not have
to await the consummation of threatened injury to obtain preventative relief.”
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). To
render unimmuned Leslie Lampton’s declaratory judgment suit would subject
Commission members to repeated threats of litigation, for which they could seek
no relief until such time as the threatening party filed suit. Such a result would
run afoul of the purpose of declaratory relief, see Cardinal Chem. Co. v. Morton
Int’l, Inc., 508 U.S. 83, 95-96 (1993) (noting, without declaratory relief, plaintiff
could “engage[] in a danse macabre, brandishing a Damoclean threat with a
sheathed sword”), and the Court sees no reason why Commission members
should be denied relief which the broader public enjoys.
If Leslie Lampton violated his oath of secrecy, he may be subject to
discipline. See MISS. CODE ANN. § 9-19-19 (providing “[a]ll commission members
. . . shall take an oath of secrecy concerning all proceedings before the
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commission, violation of which shall be punishable as contempt”). He is not,
however, subject to suit for such violation if it arose in the performance of his
official duties, including in the assertion of that immunity, which he enjoys
solely as protection for those duties.
CONCLUSION
Accordingly, the judgment of the district court, insofar as it denied
immunity to Leslie Lampton for his filing of the declaratory relief action, is
REVERSED, and the case is REMANDED to the district court for proceedings
consistent with this opinion.
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HAYNES, Circuit Judge, dissenting:
I respectfully dissent from the (implicit) decision not to certify this
question to the Mississippi Supreme Court pursuant to Mississippi Rule of
Appellate Procedure 20 which provides for certification where “there may be
involved in any proceeding before [us] questions or propositions of law of this
state which are determinative of all or part of [our case] and there are no clear
controlling precedents in the decisions of the Mississippi Supreme Court.” MISS.
R. APP. P. 20(a). The majority opinion correctly states that this case involves
interpretation of a statute that has “never been applied in any reported decision
by the Mississippi courts.” Op. at 5. Thus, it clearly meets Rule 20’s
requirement.
Of course, both the decision to certify a question and the acceptance of a
certified question are discretionary matters in each court. Patterson v. Mobil Oil
Corp., 335 F.3d 476, 487 (5th Cir. 2003). In previous decisions, we have outlined
factors to guide us in determining whether to exercise that discretion: (1) the
closeness of the question; (2) the existence of sufficient sources of state law on
the question “to allow a principled rather than conjectural conclusion”; (3)
considerations of comity, such as the importance of the issue to the state; and (4)
the practical limitations of the certification process, such as unnecessary delay
and a possible inability to frame the question so as to produce a helpful response.
Williamson v. Elf Aquitaine, Inc., 138 F.3d 546, 549 (5th Cir. 1998).
This case presents a close question. While the majority opinion’s approach
is plausible, I am concerned with the imperfect analogies to workers’
compensation insurance in construing “arising out of” and to judicial immunity
in construing the breadth of immunity granted. I am also concerned that the
majority opinion’s approach takes a concept of insurance interpretation (where
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coverage is always construed in favor of the insured1) and plugs it into a
completely unrelated statute. Further, the majority opinion’s interpretation of
Section 9-19-29 completely reads out “the performance of” from the section.
Under the majority opinion, anything that has some “causal connection”
to Lampton’s “official duties” such that those duties “rationally contributed to”
the event in question is protected by immunity. Of course, that would cover
everything Lampton does with the information he learned through his “official
duties” regardless of whether it relates to “the performance of” those duties.
Had Lampton learned the same confidential information as a member of the
Commission and then walked down to the local pub and started telling what he
knew to the other patrons, that conduct would have some “causal connection” to
his work on the Commission because without that work, he never would have
known the information. Yet I doubt anyone would say he should be or is entitled
to immunity for such conduct.
Instead, I think the phrase “the performance of” acts a limitation on
“arising out of.” Here, the decision to file a pre-emptive declaratory judgment
action came after he left the Commission to protect himself personally.2 It was
not in any way a part of the performance of his official duties and is only
1
Architex Ass’n, Inc. v. Scottsdale Ins. Co., 27 So. 3d 1148, 1157 (Miss. 2010); Myers v.
Am. States Ins. Co., 914 So. 2d 669, 676 (Miss. 2005).
2
The majority opinion’s suggestion that a declaratory judgment is some sort of
absolute right and the appropriate response every time one is threatened with a lawsuit is
misplaced and not supported by the cases cited. See Wilton v. Seven Falls Co., 515 U.S. 277,
287 (1995) (The Supreme Court has “repeatedly characterized the Declaratory Judgment Act
as ‘an enabling Act, which confers a discretion on the courts rather than an absolute right
upon the litigant.’”) (internal citation omitted)). In Babbitt, the question was whether one
could challenge the constitutionality of a criminal statute without first being charged with
violating it. 442 U.S. at 298. In Cardinal Chemical, the issue was whether the validity of a
patent could be adjudicated without a pre-existing suit for infringement. 508 U.S. at 95-96.
In both cases, the declaratory judgment was needed to address the propriety of ongoing
conduct, not merely head off a lawsuit. Filing a lawsuit to assert one’s right not to be sued
makes little sense under the facts here and is certainly not an absolute right.
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causally linked to those duties by the fact that he would not have known the
information he revealed if he had not been on the Commission.
The majority opinion posits that the failure to extend immunity to this
situation would lead to the absurd result that the Diazes could sue Lampton,
and he would not be able to assert immunity as a defense. I respectfully
disagree. If the Diazes filed a complaint and said “you did X and Y,” whatever
secrets revealed there would be their doing, not that of Lampton. He would then
be able to say “I did the things alleged in paragraphs 1-10 as a member of the
Commission and, therefore, claim immunity” without having to reveal any new
information or confidences. I offer this analysis not to suggest that we should
affirm the district court, but rather to show that the question is not a simple one
but a close one.
As far as the second factor, I submit that the majority opinion shows an
absence of state law sources to make anything other than a guess at Mississippi
law. The cases cited actually come out the opposite to that of the majority
opinion, though I agree that they are distinguishable. Workers’ compensation
law, as mentioned above, is not the same as immunity for Commission members.
While judicial immunity may be broadly construed, there is nothing to require
that this broad construction spill over to Commission members. Thus, we are
left with little upon which to base an opinion.
Turning to “considerations of comity,” the disciplining of judges and, by
extension, protection for those who are charged with that duty, is the province
of the sovereign who gave the judge his or her power in the first place. Cf.
Landmark Commc’ns v. Virginia, 435 U.S. 829, 848 (1978) (Stewart, J.,
concurring in the judgment) (“There could hardly be a higher governmental
interest than a State’s interest in the quality of its judiciary.”). Although one
could argue that the absence of any cases construing this statute means that the
statute is not important (although that would be true, then, of any question we
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certify), the majority opinion suggests that the question is an important one.
Indeed, this case deals with balancing protection of Commission members from
suit against protection of those investigated by the Commission from breaches
of their confidentiality. Further, if the majority opinion is viewed as an
authoritative construction of the phrase “arising out of” outside the insurance
context, certainly there are many statutes using this language. Thus, it could
have an impact outside this particular context.
Finally, I do not see any undue delay created by certification. Nor do I
think the question is particularly difficult to frame: Does the immunity provided
by Section 9-19-29 protect the action of a former Commission member of
revealing confidential information in a declaratory judgment he filed of public
record not under seal?
Accordingly, I respectfully dissent from the decision not to certify this
question.
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