Shanks v. AlliedSignal, Inc., 97-20683

Citation169 F.3d 988
Decision Date30 March 1999
Docket NumberNo. 97-20683,97-20683
PartiesEugene E. SHANKS, Sr., doing business as Fliteline Maintenance Incorporated, doing business as Fliteline Maintenance; Farm and Ranch Aerial Applicator Services Incorporated; Gulf Coast AG Incorporated, Plaintiffs-Appellees, v. ALLIEDSIGNAL, INC., doing business as Garrett Engine Division; et al., Defendants, Alliedsignal, Inc., doing business as Garrett Engine Division; Peter Baker, doing business as Garrett Engine Division, doing business as Alliedsignal, Inc; Sandy Meour, doing business as Garrett Engine Division, doing business as Alliedsignal, Inc., Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

George E. Crow, Katy, TX, James Michael Leitner, Belton, TX, for Plaintiffs-Appellees.

Thomas Miles Farrell, Ann E. Kitzmiller, Mayor, Day, Caldwell & Keeton, Houston, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This case begins with the crash of an agricultural aircraft in rural Louisiana. The aircraft had been manufactured by Defendants AlliedSignal, Inc., Peter Baker, and Sandy Meour (collectively "Allied"). It had been maintained by Plaintiffs Eugene Shanks, Farm and Ranch Aerial Applicator Services, and Gulf Coast AG, Inc. (collectively "Shanks"). Pursuant to 49 U.S.C. § 1132, the National Transportation Safety Board ("NTSB") conducted an official investigation to determine the probable cause of the crash. The NTSB designated Allied as a party to the investigation under 49 C.F.R. § 831.11. As a party, Allied participated in the NTSB investigation, which included a tear-down of the aircraft's engine at Allied's facility in Houston, Texas.

Following its investigation, the NTSB issued a "Brief of Accident," as required by federal law. 1 Although the report did not mention Shanks explicitly, it concluded that the probable cause of the accident was the fact that "[t]he airplane was improperly maintained." 2 Shanks alleges that Allied conspired to manipulate the NTSB investigation and contributed to an accident report that was false and misleading. 3 He also claims that Allied owed him a duty to rectify errors in the NTSB's report. 4 According to Shanks, the NTSB's false accident report led to his indictment on eight federal felony counts. Shanks also claims that the Federal Aviation Administration, prompted by the NTSB report, forced him to agree not to reapply for an airman mechanic's license for one year.

Shanks asserts numerous state law causes of action arising from Allied's conduct. His complaint alleges "defamation, tortious interference with business relations, intentional infliction of mental distress, common law negligence, unfair trade practices, negligent infliction of mental distress, intentional infliction of emotional distress, fraud and civil conspiracy." Allied filed a motion for summary judgment on the ground that it was immune from suit for statements made during the NTSB investigation. It argued that Texas law provides absolute immunity for any communications made in connection with judicial, quasi-judicial, or legislative proceedings. The district court denied Allied's motion, finding that the NTSB investigation was not a judicial, quasi-judicial, or legislative proceeding, nor were statements made during the investigation sufficiently connected to any other judicial, quasi-judicial, or legislative proceedings. Allied now appeals the district court's order denying its motion for summary judgment. We vacate that order and remand for further proceedings.

I

Shanks argues that we lack jurisdiction over this appeal because the order from which Allied appeals is not a final decision. Under 28 U.S.C. § 1291, we have jurisdiction to hear "appeals from all final decisions of the district courts of the United States." We read this language to encompass interlocutory appeals "from a small category of decisions that, although they do not end the litigation, must nonetheless be considered 'final.' " Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 1208, 131 L.Ed.2d 60 (1995). This doctrine, known as the collateral order doctrine, applies only to those decisions "that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Id.

In Quirk v. Mustang Engineering, Inc., 143 F.3d 973 (5th Cir.1998), we asserted jurisdiction over an immunity claim almost identical to the one before us today. The defendant in Quirk moved for summary judgment on the ground that he was absolutely immune from suit for statements made during a quasi-judicial proceeding. The district court denied his motion, and the defendant appealed. We heard the appeal, finding that "[w]e have jurisdiction over interlocutory appeals denying summary judgment based on absolute immunity." Id. at 975.

The Quirk panel did not, however, specifically address whether an order denying such an immunity is properly deemed "final" under § 1291 and the collateral order doctrine. Nonetheless, an independent application of our precedent in that area compels the same result. "[O]rders denying certain immunities are strong candidates for prompt appeal under § 1291." Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 871, 114 S.Ct. 1992, 1998, 128 L.Ed.2d 842 (1994). An immunity from suit is not only a means of prevailing on the merits, but an "entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). This entitlement is "effectively lost if a case is erroneously permitted to go to trial." Swint, 514 U.S. at 42, 115 S.Ct. at 1208 (emphasis omitted). In the parlance of the collateral order doctrine, a claim of immunity from suit is "effectively unreviewable" once the defendant is forced to go to trial, because he or she is permanently deprived of the right to avoid the burdens of litigation. Id. For this reason, we have heard appeals from interlocutory orders denying a defendant's assertion of immunity from suit. See, e.g., Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir.1996); Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir.1988); Williams v. Collins, 728 F.2d 721, 726 (5th Cir.1984).

We must, however, "view claims of a 'right not to be tried' with skepticism, if not a jaundiced eye." Digital Equipment, 511 U.S. at 873, 114 S.Ct. at 1999. As the Supreme Court has acknowledged, "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial.' " Id. at 873, 114 S.Ct. at 1998. Consequently, when we assess whether interlocutory review is appropriate, "[t]he critical question ... is whether 'the essence' of the claimed right is a right not to stand trial," Van Cauwenberghe v. Biard, 486 U.S. 517, 524, 108 S.Ct. 1945, 1950, 100 L.Ed.2d 517 (1988). Thus our jurisdiction to review the order now appealed turns on whether Allied's claim of absolute immunity "provides a true immunity from suit and not a simple defense to liability." Sorey, 849 F.2d at 962; see also Swint, 514 U.S. at 43, 115 S.Ct. at 1208 (denying jurisdiction under the collateral order doctrine where defendant's claim was based on a "mere defense to liability" and not an "immunity from suit"). 5

Allied bases its immunity claim on the rule of Texas law that communications made during the course of judicial, quasi-judicial, or legislative proceedings are "absolutely privileged." Reagan v. Guardian Life Ins., 140 Tex. 105, 166 S.W.2d 909, 912 (1942). Although appellate jurisdiction under § 1291 is a matter of federal law, we look to state law to determine whether the basis of Allied's claim is properly characterized as an immunity from suit or merely a defense to liability. See Tamez v. City of San Marcos, 62 F.3d 123, 125 (5th Cir.1995) (assessing whether a defendant may appeal an interlocutory order denying a motion for summary judgment based on state law qualified immunity). According to the Texas Supreme Court, the absolute privilege claimed by Allied "is more properly thought of as an immunity." Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex.1987). Communications subject to this privilege simply "cannot constitute the basis of a civil action." Reagan, 166 S.W.2d at 912. Where the privilege arises, "no action in damages ... will lie." Id. One Texas court has held, in near perfect response to the jurisdictional inquiry now before us, that this "absolute privilege is not a defense. Rather, absolutely privileged communications are not actionable." CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849 (Tex.App.--Houston [1st Dist.] 1991, writ denied) (citations omitted). Such communications are "absolutely immune from civil liability." Attaya v. Shoukfeh, 962 S.W.2d 237, 240 (Tex.App.--Amarillo 1998, writ denied).

We are convinced that Texas law regards its privilege for communications made in the context of judicial, quasi-judicial, or legislative proceedings as a complete immunity from suit, not a mere defense to liability. To insist on a final judgment before reviewing a denial of that immunity could deprive Allied of its entitlement to avoid the burdens of trial. Allied may therefore appeal the district court's rejection of its immunity claim as a collateral order under 28 U.S.C. § 1291.

II

Allied contends that the district court erred in denying its motion for summary judgment. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See F ED. R. C IV. P. 56(c). We review a district court's denial of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Smith v. Brenoettsy, 158 F.3d 908, 911...

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