North Atlantic Security v. Blache

Case: 22-30703 Document: 00516973238 Page: 1 Date Filed: 11/17/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 17, 2023

No. 22-30703 Lyle W. Cayce

____________ Clerk

North Atlantic Security Company,

Plaintiff—Appellee,

versus

Fabian Blache,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-379

______________________________

Before Clement, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

Fabian Blache appeals the district court’s partial denial of his motion

for summary judgment. We DISMISS for lack of appellate jurisdiction.

North Atlantic Security Company alleges that Blache violated its

federal due process rights by revoking its license to operate, and that he

violated Louisiana state law by informing North Atlantic’s clients of that fact.

The client-contact claim is the sole claim on which the district court denied

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 22-30703

summary judgment. And, as even Blache admits, that claim only sounds in

state law. Blue Br. 14 (“Here, there is no question that North Atlantic never

alleged that Blache violated federal law by contacting its clients.”). That is

perhaps why Blache never invoked federal qualified immunity on that issue

below. See Blache Mot. Sum. J. ROA.280–95 (not doing so). See, e.g., Tuttle

v. Sepolio, 68 F.4th 969, 976 (5th Cir. 2023) (per curiam) (“Federal qualified

immunity does not apply to state-law claims . . . .”).

Under 28 U.S.C. § 1291, this court’s appellate jurisdiction is tightly

circumscribed to reviewing “final decisions.” Accordingly, an “order

denying a motion for summary judgment is generally not a final decision

within the meaning of § 1291 and is thus generally not immediately

appealable.” Plumhoff v. Rickard, 572 U.S. 765, 771 (2014). The Supreme

Court has carved out an exception for “collateral orders,” which can include

the denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 525,

530 (1985). Because Blache did not, and could not, invoke the protection of

federal qualified immunity for his alleged violation of state law, we

DISMISS this appeal for want of interlocutory appellate jurisdiction. †

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†

Our dissenting colleague does not contest that the amended complaint only raised

the client-contact claim under state law. Post, at 4. Nor does the dissent contest that Blache

admits as much. Id. at 5. Instead, the dissenting opinion parses the original, superseded

complaint, prior to the inclusion of the state-law claim, to infer a federal claim the amended

complaint omits. Id. at 4. The dissent also rejects Blache’s admission “there is no question

that North Atlantic never alleged that Blache violated federal law by contacting its clients”

because that issue was raised sua sponte by the district court. Id. at 5-6. We instead address

the claims North Atlantic raised.

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Haynes, Circuit Judge, dissenting in part:

I respectfully dissent from the majority opinion because I conclude

North Atlantic brought a claim under federal law against Blache, alleging that

his contact of North Atlantic’s clients violated North Atlantic’s federal due

process rights. The district court agreed, and it denied summary judgment

based on qualified immunity for that claim alone. Because Blache moved for

summary judgment on all claims and the district court ruled on this issue, I

conclude we have jurisdiction over that decision, and I would reverse the

district court’s denial of qualified immunity for Blache on North Atlantic’s

federal client-contact claim.

I. Background

Blache served as the executive secretary of the Louisiana State Board

of Private Security Examiners (the “Board”). The Board is a state agency

within Louisiana’s Department of Public Safety and Corrections, see La.

Rev. Stat. Ann. § 37:3273(A), which is responsible for regulating the

private security industry in Louisiana, see id. § 37:3274(A).

In 2018, Blache received a tip regarding a possible rules violation by

Joshua Lands, who was working as an armed guard for North Atlantic

Security Company (“North Atlantic”). Blache investigated and confirmed

that Lands was working as an armed security guard without authorization,

and that Lands was not carrying his firearms registration card in violation of

Board regulations. See id. § 37:3283(B). North Atlantic’s license to operate

under the Board’s regulations was subsequently revoked, and Blache

allegedly informed North Atlantic’s customers of this fact. North Atlantic’s

contracts, which it had obtained through the bidding process with the Office

of State Procurement, were then awarded to another company. Subsequent

to this process, the Board held an administrative hearing as to this issue,

though it is unclear what the outcome of the hearing was.

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II. Jurisdiction

From the beginning of this lawsuit, North Atlantic has claimed Blache

violated its federal due process rights when he contacted North Atlantic’s

clients to tell them that North Atlantic’s license had been revoked. North

Atlantic’s original petition—titled “PETITION FOR DAMAGES UNDER

42 USC 1983”—alleged exactly that under exclusively federal law.

Specifically, North Atlantic alleged that Blache’s actions—including

“notif[ying] all its customers that North Atlantic could not work in

Louisiana”—“destroyed [North Atlantic] as a viable company in

Louisiana.” North Atlantic claimed more than $2 million in damages for,

inter alia, violation of its Fourteenth Amendment rights. If the client contact

was not a part of North Atlantic’s federal claims, why mention it? Further,

the cease-and-desist letter, fine, and revocation alone—if no one knew about

them—would be unlikely to justify the significant damages claimed.

Nevertheless, the majority opinion concludes that North Atlantic only

alleged its client-contact claim under state law. North Atlantic did file a

revised amended complaint, which added a state law claim alleging that

Blache’s revocation of North Atlantic’s license and notification of North

Atlantic’s clients about this revocation violated North Atlantic’s due process

rights under the Louisiana Constitution. However, the amended complaint

still included all the same claims from the original petition, and it did not

remove or withdraw any causes of action included in the original petition.

The same federal client-contact claim that North Atlantic pled originally was

also in the amended complaint. The amended complaint therefore raised the

client-contact claim under both state and federal law (unlike what the

majority opinion footnote suggests I am stating).

Blache filed a motion for summary judgment seeking dismissal of all

of North Atlantic’s claims, although he did not specifically address his

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alleged wrongful notification of North Atlantic’s clients. 1 In its response,

North Atlantic reiterated its client-contact allegations in a section addressing

federal qualified immunity, saying “Blache violated black letter law in several

respects” including “notifying all the customers of North Atlantic that it

could no longer work in Louisiana and to get another company.” This

argument would be irrelevant if North Atlantic had only brought its client-

contact claim under state law. See Tuttle v. Sepolio, 68 F.4th 969, 976 (5th

Cir. 2023) (per curiam) (“Federal qualified immunity does not apply to state-

law claims.”).

Importantly, the district court also believed that North Atlantic

brought its client-contact claim under federal law. The district court

ultimately held that genuine disputes of material fact precluded granting

Blache’s motion for summary judgment based on qualified immunity for

North Atlantic’s federal client-contact claim. That holding is the subject of

Blache’s appeal—as well as the reason we have jurisdiction to hear it. See

Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010) (explaining our jurisdiction

includes “interlocutory appeals from denials of motions for summary

judgment” on qualified immunity to the extent the denial turns on issues of

law).

Blache’s opening brief first asserts that “there is no question that

North Atlantic never alleged that Blache violated federal law by contacting

its clients,” but then concedes that the federal client-contact claim “was

raised by the district court.” Contrary to Blache’s assertion, the district

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1

The majority opinion suggests Blache never invoked federal qualified immunity

on the client-contact claim because he believed North Atlantic did not plead that claim

under federal law. However, Blache did generally move for summary judgment on the

whole case and asserted qualified immunity to the constitutional assertions. Additionally,

both North Atlantic and the district court raised the issue.

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court did not improperly address that claim because, as described previously,

North Atlantic had already pled it and reiterated it in subsequent summary

judgment briefing. North Atlantic confirms as much in its brief before us,

saying “North Atlantic brought state and federal due process claims . . .

against Blache” alleging, inter alia, “that Blache violated its constitutional

rights when he . . . advised North Atlantic’s clients that the license had been

revoked prior to its Board hearing.” Given that Blache had moved for

summary judgment on all issues and asserted qualified immunity on

constitutional claims, the district court addressed it.

In sum, North Atlantic pled its client-contact claim under federal law

and has not withdrawn, waived, or abandoned that claim. Denying summary

judgment on that claim alone, the district court held that genuine issues of

material fact precluded granting Blache qualified immunity for his alleged

wrongful notification of North Atlantic’s clients. A district court’s denial of

a claim of qualified immunity that turns on an issue of law is immediately

appealable. Id. 2 Accordingly, I conclude we have jurisdiction over the

district court’s decision to deny qualified immunity on the claim that Blache

violated federal law when he notified North Atlantic’s clients that North

Atlantic’s license had been revoked. 3

III. Discussion

Because I conclude we have jurisdiction over North Atlantic’s federal

client-contact claim, I turn next to the question of whether Blache is entitled

to qualified immunity on that claim. We review de novo a district court’s

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2

On an interlocutory appeal, we cannot rule on the genuineness of fact issues, but

we can rule on whether they are material as a matter of law, Gobert v. Caldwell, 463 F.3d

339, 345 (5th Cir. 2006), which is what I am addressing here.

3

To the extent Blache appeals any summary judgment ruling on state law issues, I

agree with the majority that we do not have jurisdiction over those claims.

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denial of a motion for summary judgment based on qualified immunity. See

Wallace v. Cnty. of Comal, 400 F.3d 284, 288 (5th Cir. 2005).

To overcome qualified immunity, the burden is on the plaintiff to raise

fact issues that show (1) the defendant violated constitutional law, and (2) the

right at issue was “clearly established” at the time of the defendant’s alleged

misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). In most cases,

showing a right was clearly established requires citation of a relevant case that

would have put the defendant on notice of the violation. Joseph ex rel. Est. of

Joseph v. Bartlett, 981 F.3d 319, 330 (5th Cir. 2020). However, there is a

“rare” exception to this requirement, under which, “in an obvious case,

analogous case law is not needed because the unlawfulness of the

[challenged] conduct is sufficiently clear even though existing precedent

does not address similar circumstances.” Id. (alteration in original) (internal

quotation marks and citation omitted). For purposes of review, we may limit

our analysis to the “clearly established” prong if that resolves the qualified

immunity issue. See Pearson, 555 U.S. at 236–37.

According to the district court, a reasonable jury could conclude that

Blache’s outreach to North Atlantic’s clients amounted to a final revocation

of North Atlantic’s contracts that violated the company’s procedural due

process rights. Regarding the “clearly established” prong, the district court

held that this was “an obvious case” in which it was unnecessary for North

Atlantic to identify analogous case law.

I disagree. The “obvious” cannot be discerned from a “high level of

generality.” See Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011)); see also Roe v. Johnson Cnty., No. 21-10890,

2023 WL 117826, at *2 n.1 (5th Cir. Jan. 5, 2023) (per curiam) (quotation

omitted) (noting the “sky high” burden required to show an obvious case).

That is, North Atlantic fails to substantiate the notion that Blache’s outreach

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to North Atlantic’s customers regarding the revocation of the company’s

license prior to the Board hearing is such an obvious constitutional violation

that North Atlantic did not need to submit analogous precedent to the court.

For comparison, here “[w]e have nothing approaching the clarity we have

perceived in other obvious cases,” such as cases in which “it was obviously

unconstitutional for an officer to shoot—without warning, despite an

opportunity to warn—a suspect who was pointing a gun to his own head and

did not know the officer was there.” Joseph, 981 F.3d at 337. By contrast, an

officer shooting a suspected felon off the bridge on a highway was considered

not to be an “obvious” violation. Mullenix, 577 U.S. at 11–15. Indeed, North

Atlantic did not itself even invoke the “obvious case” exception before the

district court as an explanation for why it would not need to submit analogous

precedent regarding Blache’s outreach to its clients. I conclude this case

clearly does not fall within the rare “obvious case” exception.

To otherwise satisfy its burden, North Atlantic must identify a case,

or a collection of cases, holding that a government official acting in similar

circumstances to Blache violated the Constitution. Joseph, 981 F.3d at 330.

“In other words, [North Atlantic] must point this court to a legislative

directive or case precedent that is sufficiently clear such that every

reasonable official would have understood that what he is doing violates that

law.” Keller v. Fleming, 952 F.3d 216, 225 (5th Cir. 2020). While North

Atlantic points to “general propositions” relevant to the issue at hand—such

as property interests in professional licenses and Blache’s authority as

executive secretary of the Board—these propositions are insufficient to show

that “every reasonable official would have understood that what [Blache]

[wa]s doing violate[d] th[e] law.” Id. (emphasis added); see al-Kidd, 563 U.S.

at 742 (“We have repeatedly told courts . . . not to define clearly established

law at a high level of generality.”). This conclusion is reinforced by the fact

that the district court did determine that Blache was entitled to qualified

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immunity on North Atlantic’s cease-and-desist revocation order, as well as

North Atlantic’s excessive fines claim. As such, I conclude that North

Atlantic cannot satisfy its burden of proof on the clearly established issue.

See Joseph, 981 F.3d at 329–30; see also Roe, 2023 WL 117826, at *2

(determining appellant’s “general propositions” were “insufficient to meet

the required burden”).

Accordingly, I would reverse the district court’s denial of summary

judgment based on qualified immunity as to North Atlantic’s federal client-

contact claim. Since the majority opinion does not reach the merits of that

decision, I respectfully dissent on that issue.

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