Kling v. Hebert

Case: 21-30658 Document: 00516649957 Page: 1 Date Filed: 02/17/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

February 17, 2023

No. 21-30658

Lyle W. Cayce

Clerk

Randall Kling,

Plaintiff—Appellant,

versus

Troy Hebert; Ernest P. Legier, Jr., in his Official Capacity as the

Commissioner of the Office of Alcohol and Tobacco Control of the Louisiana

Department of Revenue,

Defendants—Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-671

Before Stewart, Dennis, and Higginson, Circuit Judges.

James L. Dennis, Circuit Judge:

After prevailing in state court on claims that he was fired in retaliation

for exercising his state constitutional right to freedom of expression, Randall

Kling filed a federal suit alleging the same set of facts but asserting for the

first time a First Amendment claim. The district court dismissed Kling’s suit,

finding that the defendants’ factual attack showed that the only remedy not

barred by sovereign immunity was impossible to grant, and that Kling’s claim

was prescribed. On appeal, Kling contends that a factual attack on a district

Case: 21-30658 Document: 00516649957 Page: 2 Date Filed: 02/17/2023

No. 21-30658

court’s subject matter jurisdiction is improper at the pleadings stage, and that

his state lawsuit interrupted prescription on his newly asserted federal claim

because both rely on the same set of operative facts. He urges reversal.

We conclude that the district court did not err in dismissing Kling’s

official capacity claims as barred by sovereign immunity and accordingly

affirm that ruling in the district court’s decision. However, because there are

no clear controlling precedents from the Louisiana Supreme Court as to

whether prescription on Kling’s federal claim was interrupted by his state

action, we certify the relevant question to that court.

I. Facts and Procedural History

In 2011, Kling was fired from his position as “Captain in charge” of

the Licensing and Certification Division of the Louisiana Office of Alcohol

and Tobacco Control (ATC). Kling filed a lawsuit in the 19th Judicial District

Court in Baton Rouge, alleging that he was fired in retaliation for submitting

written complaints describing various workplace and ethics violations

committed by then-Assistant Secretary of the ATC, Troy Hebert. Kling’s

petition named the Louisiana Department of Revenue, which includes the

ATC, as the sole defendant and asserted a single claim of violation of

Louisiana’s constitutional right to free expression. La. Const. art. 1 § 7.

He did not allege any federal claims. Kling’s case went to trial, and a jury

awarded him compensatory damages and lost wages. Kling filed a motion for

a new trial seeking the additional remedy of reinstatement, which the trial

court “denied on showing made.” On appeal, the Louisiana First Circuit

Court of Appeal reversed the lost wages portion of Kling’s judgment. The

Louisiana Supreme Court denied Kling’s application for a writ of certiorari.

After the First Circuit partially reversed the jury judgment, Kling filed

a complaint in federal district court asserting the same set of facts and seeking

declaratory relief, damages (including lost wages), and reinstatement for

2

Case: 21-30658 Document: 00516649957 Page: 3 Date Filed: 02/17/2023

No. 21-30658

violations of his First and Fourteenth Amendment rights. Kling named the

Commissioner of the ATC in her official capacity1 and Troy Hebert in his

individual capacity as defendants. The Commissioner filed a Rule 12(b)(1)

motion to dismiss, arguing that reinstatement was impossible and attaching

evidence that Kling’s former position no longer existed, that Kling had let his

professional license needed for a comparable position lapse, and that Kling

had moved to Texas. Without the prospective injunctive remedy of

reinstatement, Kling’s claims did not fall within Ex parte Young’s exception

to the Commissioner’s sovereign immunity. Hebert also filed a motion to

dismiss, arguing that Kling’s First Amendment claim had prescribed in 2012,

more than seven years before he filed his federal suit. The district court

granted both motions. Kling timely appealed.

II. Standard of Review

“This Court evaluates de novo the district court’s grant of Appellee’s

Rules 12(b)(1) and 12(b)(6) motion for dismissal applying the same standard

used by the district court.” Ramming v. United States, 281 F.3d 158, 161 (5th

Cir. 2001). In a 12(b)(1) factual attack, the district court’s resolution of

disputed jurisdictional facts is reviewed for clear error. In re S. Recycling,

L.L.C., 982 F.3d 374, 379 (5th Cir. 2020).

III. Discussion

A. Sovereign Immunity

Kling sued the Commissioner in her official capacity which, in a § 1983

action, is no different than suing the State itself. Will v. Michigan Dep’t of

State Police, 491 U.S. 58, 71 (1989). Because Louisiana has not waived

sovereign immunity from suit in federal court, see La. R.S. 13:5106, claims for

1

Juana Marie Lombard was the Commissioner at the time Kling filed his complaint.

After the district court entered its ruling, Ernest Legier Jr. replaced Lombard.

3

Case: 21-30658 Document: 00516649957 Page: 4 Date Filed: 02/17/2023

No. 21-30658

relief that do not fall within Ex parte Young’s exception for remedies of

ongoing constitutional violations—that is, claims for damages—are typically

barred. In cases where someone has been fired in retaliation for exercising his

First Amendment rights, reinstatement is the kind of prospective injunctive

relief that Ex parte Young allows against an otherwise immune sovereign.

Anderson v. Valdez, 913 F.3d 472, 479 (5th Cir. 2019).

Sovereign immunity “operates like a jurisdictional bar, depriving

federal courts of the power to adjudicate suits against a state.” Union Pac. R.

Co. v. Louisiana Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011). As

such, a defendant may attack the factual basis for the applicability of Ex parte

Young through a Rule 12(b)(1) motion, which permits factual challenges to a

federal court’s jurisdiction. Ramming, 281 F.3d at 161. Unlike a Rule 12(b)(6)

motion which is confined to evaluating the pleadings, a 12(b)(1) factual attack

on the court’s subject matter jurisdiction may be based on “(1) the complaint

alone; (2) the complaint supplemented by undisputed facts evidenced in the

record; or (3) the complaint supplemented by undisputed facts plus the

court’s resolution of disputed facts.” Id. “Because at issue in a factual

12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the

case—there is substantial authority that the trial court is free to weigh the

evidence and satisfy itself as to the existence of its power to hear the case.”

Mortensen v. First Fed. Savings & Loan Assoc., 549 F.2d 884, 891 (3rd Cir.

1977). When a defendant makes a factual attack, the plaintiff “has the burden

of proving by a preponderance of the evidence that the trial court does have

subject matter jurisdiction.” Paterson v. Weinberger, 644 F.2d 521, 523 (5th

Cir. 1981).

Here, the Commissioner mounted a factual attack on the feasibility of

Kling’s reinstatement, the only remedy, Kling conceded, that was not barred

by sovereign immunity. To support this attack, the Commissioner submitted

evidence showing that: (1) Kling’s former position within the ATC was

4

Case: 21-30658 Document: 00516649957 Page: 5 Date Filed: 02/17/2023

No. 21-30658

abolished; (2) Kling allowed the professional license necessary for a

comparable agent position—his POST certification—to lapse; and (3) Kling

had moved to Texas and was no longer a resident of Louisiana. Kling did not

dispute this evidence before the district court, and he does not now on appeal

either. Instead, Kling argues that it is improper to consider any evidence

outside the pleadings at the Rule 12 stage. So long as a plaintiff has pleaded a

justiciable remedy, there can be no question of the court’s subject matter

jurisdiction until summary judgment.

Kling’s broadside ignores the ample precedent in this circuit and

others supporting factual attacks via Rule 12(b). See, e.g., Ramming, 281 F.3d

at 161; Paterson, 644 F.2d at 523 (“Our court, others, and textwriters have

dealt with this subject.”); 5C Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1364 (3d ed.)

(“There is little difficulty in allowing these motions in conjunction with the

defenses enumerated in Federal Rules 12(b)(1) to 12(b)(5), and many cases

have so held.”). Thus, we conclude that the district court committed no legal

error in considering the Commissioner’s extra-pleadings evidence in this

factual attack on its subject matter jurisdiction.

Without any dispute from Kling or evidence submitted in rebuttal, we

cannot say the district court clearly erred in its jurisdictional fact finding. The

record, which on this motion consisted entirely of the Commissioner’s

evidence, showed that Kling’s former position no longer existed, that he was

not qualified to hold a comparable law enforcement position, and that he was

no longer a Louisiana resident. And based on these facts, the district court

committed no error in concluding that it lacked the power to reinstate Kling.

Precedent supports the conclusion that a court cannot order reinstatement to

a position that no longer exists, Anderson, 913 F.3d at 479, nor to a comparable

position when the plaintiff lacks a necessary qualification, Kraemer v.

Franklin & Marshall Coll., 941 F. Supp. 479, 485 (E.D. Pa. 1996); cf.

5

Case: 21-30658 Document: 00516649957 Page: 6 Date Filed: 02/17/2023

No. 21-30658

Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir. 1996) (affirming

reinstatement to different registered nurse position because plaintiff was

qualified). Courts have also recognized that a plaintiff’s move out-of-state

can impact the feasibility of reinstatement as a remedy. See E.E.O.C. v. Gen.

Lines, Inc., 865 F.2d 1555, 1561 (10th Cir. 1989) (reinstatement not feasible

when plaintiff lives in another state). We thus find no error in the district

court’s dismissal of Kling’s claims against the Commissioner.2

B. Prescription

Section 1983 claims brought in Louisiana generally borrow the state’s

one-year prescriptive period for delictual actions, as well as Louisiana’s rules

on interruption. Davis v. Louisiana State Univ., 876 F.2d 412, 413 (5th Cir.

1989). “To determine Louisiana law, we look to the final decisions of the

Louisiana Supreme Court.” In re Katrina Canal Breaches Litig., 495 F.3d 191,

206 (5th Cir. 2007). If there is no “clear and controlling precedent” from

that court on a determinative question of law, then we may certify the

question to the court. La. R.S. 13:72.1; La. Sup. Ct. R. XII § 1. However, “[a]s

a general proposition we are chary about certifying questions of law absent a

compelling reason to do so; the availability of certification is such an

important resource to this court that we will not risk its continued availability

by going to that well too often.” Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d

1245, 1247 (5th Cir. 1997). We have decided before when “intermediate

2

In his reply brief, Kling argues that whether reinstatement is feasible is too deeply

intertwined with the merits of his action for it to be settled on a 12(b)(1) factual attack.

Kling is right that where the jurisdictional question is sufficiently intertwined with the

merits, determination at the 12(b)(1) stage is inappropriate. See, e.g., Arbaugh v. Y & H

Corp., 546 U.S. 500, 510–12 (2006). But Kling failed to raise this argument in his opening

brief, so the defendants did not address it in their reply. We therefore treat the argument

as waived and do not consider it here. See Procter & Gamble Co. v. Amway Corp., 376 F.3d

496, 499 n.1 (5th Cir. 2004) (“[Kling] has waived this argument by failing to raise it in its

opening brief.”).

6

Case: 21-30658 Document: 00516649957 Page: 7 Date Filed: 02/17/2023

No. 21-30658

Louisiana appellate court decisions cast some doubt on how the Louisiana

Supreme Court would resolve this issue” that the imposition of certification

was warranted. Grubbs v. Gulf Int’l Marine, Inc., 985 F.2d 762, 763 (5th Cir.

1993).

Kling was fired on March 30, 2011. But he did not file his federal

complaint or assert a federal cause of action until October 3, 2019, more than

eight years after the accrual of his First Amendment retaliation claim. Kling

argues that his action in state court, whose certiorari application was still

pending before the Louisiana Supreme Court when Kling initiated his federal

action, interrupted prescription on his federal claim even though that state

action never asserted a First Amendment claim. This is so, says Kling,

because under Louisiana law filing a lawsuit interrupts prescription as to any

other lawsuit based on the same “cause of action,” and “cause of action” is

peculiarly defined in Louisiana as “the operative facts at issue,” as opposed

to a claim for legal relief that one may make from those facts. Therefore, even

though Kling’s state action did not assert any federal claims, its filing

interrupted prescription on Kling’s First Amendment claim because the state

lawsuit and federal lawsuit allege identical facts or the same “cause of

action.”

Kling attributes his definition of “cause of action,” and thereby also

the major premise of his argument, to Ramey v. DeCaire, 869 So. 2d 114, 118

(La. 2004). But that case does not even define “cause of action.” Rather, it

defines the peremptory exception of no cause of action, a pleadings-stage

challenge to the legal sufficiency of a plaintiff’s petition. See id. (“A cause of

action, when used in the context of the peremptory exception, is defined as . . .”)

(emphasis added). Nonetheless, though Kling’s argument fails to persuade,

his contention that his pending state action interrupted prescription as to his

federal claim is not without merit.

7

Case: 21-30658 Document: 00516649957 Page: 8 Date Filed: 02/17/2023

No. 21-30658

As the district court here noted, this issue Kling presents is “not a

novel one.” Every federal district court in Louisiana, as well as our court in

an unpublished opinion, has held that a pending state action does not

interrupt prescription as to unasserted federal causes of action. See Joseph v.

City of New Orleans, 122 F.3d 1067 (5th Cir. 1997) (unpublished); Ford v.

Stone, 599 F. Supp. 693, 695–96 (M.D. La. 1984), aff’d, 774 F.2d 1158 (5th

Cir. 1985); Vincent v. Munster, No. 17-1129, 2018 WL 1875851, at *2 (E.D. La.

Apr. 19, 2018); Giles v. Ackal, No. 6:11-1774, 2012 WL 1458117, at *3 (W.D.

La. Mar. 27, 2012), report and recommendation adopted, 2012 WL 1458110

(W.D. La. Apr. 26, 2012). However, Louisiana’s courts have been less

uniform in their decisions. In Velazquez v. Landcoast Insulation, Inc., 999 So.

2d 318, 322–23 (La. App. 3 Cir. 2008), the Louisiana Third Circuit held that

the filing of a federal action interrupted prescription as to unasserted, and

substantively different state law claims. Without defining “cause of action,”

the court stated that the federal complaint “interrupted prescription against

all the claims arising out of the cause of action described in it.” Id. at 323; see

also id. (“Prescriptive statutes are construed liberally, in favor of the

obligation sought to be extinguished.”); Taylor v. Liberty Mut. Ins. Co., 579

So. 2d 443, 445 (La. 1991) (“Prescription is interrupted when the obligee

commences action against the obligor, in a court of competent jurisdiction

and venue . . . . [S]uch a suit has the same interruptive effect whether it is

filed in a federal, Louisiana, or another state’s forum.”). But in Illes v. State

ex rel. Division of Administration, 168 So. 3d 646, 648–49 (La. App. 1 Cir.

2014), the Louisiana First Circuit held that a claim for damages and a claim

for loss of consortium, though both arising from the same act of negligence,

were separate and different causes of action and interruption did not run

between them. See also Cook v. La. Dep’t of Public Safety & Corr., 267 So. 3d

1175, 1177 (La. App. 1 Cir. 2018) (dismissing an inmate’s state tort petition

8

Case: 21-30658 Document: 00516649957 Page: 9 Date Filed: 02/17/2023

No. 21-30658

as prescribed without interruption despite his federal action asserting the

same facts).

Conflicting intermediate appellate court decisions would not preclude

our making an Erie guess if we found the Louisiana Supreme Court to have

spoken clearly on the issue. In re Katrina Canal Breaches Litig., 495 F.3d at

206. But the court has never precisely said if, or when, asserting one cause of

action interrupts prescription as to another. In its broadest statements on the

matter, the court has declared that “[a] petition’s cause of action is irrelevant

to interruption of prescription.” Montiville v. City of Westwego, 592 So. 2d

390, 391 (La. 1992) (citing Batson v. Cherokee Beach & Campgrounds, 530

So.2d 1128 (La.1988)); see Batson, 530 So. 2d at 1130 (“Whether a pleading

sets forth a cause of action is irrelevant to the issue of interruption of

prescription. A civil action is commenced by the filing of a pleading

presenting the demand. Therefore, if what is filed can be classified as a

‘pleading presenting the demand,’ prescription will be interrupted whether

or not the original pleading sets forth a cause of action.”) (cleaned up).

But in other cases, the court has held that “when a suit by a second

party states a different cause of action than the suit by the first party, although

each cause of action is based in part on common facts, the first suit does not

interrupt prescription as to the subsequent cause of action.” Louviere v. Shell

Oil Co., 440 So. 2d 93, 96 (La. 1983); see also Guidry v. Theriot, 377 So. 2d 319,

326 (La. 1979); Nini v. Sanford Bros., 276 So. 2d 262, 264–65 (La. 1973) (“In

Louisiana, the essence of interruption of prescription by suit has been notice

to the defendant of the legal proceedings based on the claim involved.”)

(emphasis added). And in another instance, the court appears to have taken

an intermediate view, requiring that the two causes of action share both

common factual bases and common legal elements in order for interruption

to run as to both. See Parker v. S. Am. Ins. Co., 590 So. 2d 55, 56 (La. 1991).

9

Case: 21-30658 Document: 00516649957 Page: 10 Date Filed: 02/17/2023

No. 21-30658

We note finally that the Code, which is primary law in Louisiana, is silent as

to this particular aspect of interruption’s scope. See La. Civ. Code art. 3462.

In sum, we find there is both a lack of clear controlling precedent and,

given the frequency with which the issue is litigated in both federal and

Louisiana courts, reason to impose our request for guidance upon the

Louisiana Supreme Court.

IV. Question Certified

CERTIFICATE FROM THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

TO THE SUPREME COURT OF LOUISIANA,

PURSUANT TO RULE XII, LOUISIANA SUPREME

COURT RULES.

TO THE SUPREME COURT OF LOUISIANA AND

THE HONORABLE JUSTICES THEREOF:

A. Style of the Case

The style of the case in which this certification is made is Randall

Kling v. Troy Hebert; Ernest P. Legier, Jr., in his official capacity as

Commissioner of the Office of Alcohol and Tobacco Control of the Louisiana

Department of Revenue, No. 21-30658, in the United States Court of Appeals

for the Fifth Circuit. The case is on appeal from the United States District

Court for the Middle District of Louisiana.

B. Statement of the Facts

The statement of facts, showing the nature of the cause and the

circumstances out of which the question or proposition of law arises, is

provided above.

10

Case: 21-30658 Document: 00516649957 Page: 11 Date Filed: 02/17/2023

No. 21-30658

C. Question of Law to be Answered

We certify the following question to the Louisiana Supreme Court:

In Louisiana, under what circumstances, if any, does the

commencement of a suit in a court of competent jurisdiction and venue

interrupt prescription as to causes of action, understood as legal claims rather

than the facts giving rise to them, not asserted in that suit?

V. Conclusion

For the foregoing reasons, we AFFIRM the district court’s dismissal

of Kling’s claims against the Commissioner as barred by sovereign immunity.

As to whether prescription on Kling’s individual capacity claims against

Hebert was interrupted, we CERTIFY the question to the Louisiana

Supreme Court. We disclaim any intent that the Louisiana Supreme Court

confine its reply to the precise form or scope of the legal question we certify.

We transfer to the Supreme Court of Louisiana the record and appellate

briefs in this case with our certification. This panel retains cognizance of this

appeal pending response from the Supreme Court of Louisiana.

11