Nance v. New Orleans Baton, et al

* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
April 10, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-30194
MICHAEL P. NANCE,
Plaintiff-Appellee,
versus
NEW ORLEANS AND BATON ROUGE STEAMSHIP PILOTS’ ASSOCIATION,
ET AL.,
Defendants,
BOARD OF EXAMINERS FOR THE NEW ORLEANS AND BATON ROUGE STEAMSHIP
PILOTS; HENRY G. SHOWS, individually and in his capacity as a
member of the Board of Examiners; EDDIE DANIELS, individually and
in his capacity as a member of the Board of Examiners; DAVID
SHIRE, individually and in his capacity as a member of the Board
of Examiners,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:03-CV-3092)
Before KING, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This interlocutory appeal by members of the Board of Examiners
(Henry G. Shows, Eddie Daniels, and David Shirah (spelled “Shire”
in caption) (the Board)) for the New Orleans and Baton Rouge

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Steamship Pilots’ Association (NOBRA) is from the denial of their
absolute and qualified-immunity claims. REVERSED and RENDERED.
I.
A statutorily-created entity, NOBRA is charged with
“pilot[ing] sea-going vessels from the port of New Orleans to 31N
North Latitude and return including the port of Baton Rouge and
intermediate ports”. LA. REV. STAT. ANN. § 34:1043. Appointed by
the Governor, with the advice and consent of the Senate, id. §
34:1042(A), the Board is required to “report immediately to the
governor all cases of neglect of duty, habitual drunkenness, and
gross violations of its rules”; the Governor may then request the
Board to conduct an investigation and recommend a penalty. Id. §
34:1042(B).
On 18 April 2002, Michael Nance, a commissioned river pilot
and NOBRA member, had a scheduled shift at the United States Coast
Guard’s Vessel Traffic Service Center (VTC) from 11:00 p.m. until
7:00 a.m. the following morning. Soon after arriving for his
shift, and without permission to do so, Nance left. (Although his
activities during his absence are disputed, he does not dispute
being absent for almost his entire shift.)
On the morning of 19 April, following what would have been the
end of his VTC shift, Nance went to NOBRA’s office, where he and
other river pilots were to inspect NOBRA’s records. (This
inspection was precipitated by accusations that one or more pilots

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had posted private pilot records on the Internet.) Prior to the
inspection, NOBRA’s president asked Nance to take a Breathalyzer
test; he wanted to determine whether Nance had consumed alcohol
while on VTC duty. (When deposed, the president explained he had
received a report that morning from another NOBRA pilot that Nance
spent the prior night drinking.)
Nance refused to take the test before speaking with his
attorney. Unable to reach his attorney that morning, Nance did not
agree to take the test until after the test administrator had left
NOBRA’s offices; by then, too much time had passed for the test to
be accurate.
Following an investigation by NOBRA, Nance was offered, and
signed on 26 November 2002 (without a NOBRA-permitted hearing), a
return-to-duty order. It was a proposed agreement in the nature of
a plea bargain, providing: (1) Nance admitted to being absent from
his VTC post and refusing to submit to the Breathalyzer test when
requested; (2) the Board recommended concurrent one-year
suspensions for each offense, reduced to six months because of
Nance’s “unblemished history as a pilot”; and (3) upon his return
to duty, Nance was to serve a two-year probationary period, during
which the Board could, after a hearing, require him to serve the
remainder of his original suspension if further infractions
occurred.

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The Governor rejected the proposed agreement. A second
agreement was reached: in part, for the probationary period, the
Governor could determine Nance committed a violation warranting his
serving the remainder of his suspension. Nance asserts he accepted
this agreement under duress; he asserts he was told that, if he did
not agree to it, he would lose his commission.
Rather than challenging the agreement pursuant to the process
provided by state law, Nance filed this action, pursuant to 42
U.S.C. §§ 1983, 1985, and 1986, against NOBRA and the Board for
violations of his due-process and equal-protection rights. NOBRA
and the Board moved for summary judgment, claiming immunity.
The district court granted NOBRA summary judgment, concluding:
Nance failed to state a claim under § 1983 because NOBRA and its
officers played no role in investigating or punishing Nance; he
failed to state an actionable § 1985(3) conspiracy claim; and,
because he failed to do so, the related § 1986 claim failed.
Regarding the Board, summary judgment was awarded against the §§
1985 and 1986 claims; it was denied, however, for the § 1983
claims.
II.
A summary-judgment decision is reviewed de novo. Michalik v.
Hermann, 422 F.3d 252, 257 (5th Cir. 2005). Summary judgment is
proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show

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that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). Summary-judgment evidence is viewed in the light most
favorable to the non-movant, with all reasonable inferences drawn
in his favor. Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460,
465 (5th Cir. 2005). In essence, the Board maintains its actions
are protected by both absolute quasi-judicial immunity and
qualified immunity. For the reasons that follow, the Board has
qualified immunity; therefore, we need not address the other
claimed immunity.
Qualified immunity is an affirmative defense. Siegert v.
Gilley, 500 U.S. 226, 231 (1991). The immunity protects against
“not only unwarranted liability, but [also] unwarranted demands
customarily imposed upon those defending a long drawn out lawsuit”.
Id. at 232. To achieve these goals, it should be raised as early
as possible in the litigation. Brown v. Lyford, 243 F.3d 185, 191
(5th Cir.), cert. denied, 534 U.S. 817 (2001). The plaintiff has
the burden of overcoming a qualified-immunity defense. Atteberry
v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005).
We normally lack jurisdiction to review a summary-judgment
denial because it is not a final, appealable order. Michalik, 422
F.3d at 257. An appeal from the denial of qualified immunity
claimed through a summary judgment motion may fall, however, under

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the collateral-order doctrine. Id. (noting “a small class of
interlocutory orders that (1) conclusively determine, (2) important
issues, which are separate from the merits of the action, and (3)
which would be effectively unreviewable on appeal from a final
judgment, are deemed ‘final’ for the purposes of appeal”) (internal
quotation marks omitted). Under this doctrine, if the appeal
“turns on an issue of law”, we have jurisdiction to review the
denial. Id.; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)
(concluding an appeal from the qualified-immunity denial meets each
of the collateral-order doctrine’s requirements).
For summary-judgment purposes, “[a] factual dispute is
‘genuine’ [if] a reasonable party could return a verdict for the
nonmoving party”. Lukan v. N. Forest ISD, 183 F.3d 342, 345 (5th
Cir. 1999), cert. denied, 529 U.S. 1019 (2000). If the qualified-
immunity denial is based on genuine issues of material fact, we
lack jurisdiction. See Bazan v. Hidalgo County, 246 F.3d 481, 490
(5th Cir. 2001) (“[W]e have jurisdiction for this interlocutory
appeal if it challenges the materiality of factual issues, but lack
jurisdiction if it challenges the district court’s genuineness
ruling — that genuine issues exist concerning material facts”.)
(emphasis in original); see also Reyes v. City of Richmond, 287
F.3d 346, 351 (5th Cir. 2002) (explaining a “challenge [to] the
genuineness, rather than the materiality, of the factual disputes
... is not reviewable by interlocutory appeal”).

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It appears the district court based its qualified-immunity
denial on the equal-protection, not the due-process, claim. It
also appears, however, that the court did not undertake the
mandatory first-step analysis for qualified-immunity vel non
(violation of constitutional right) and based the denial on step
two (objective reasonableness). It concluded: “[T]here are
material issues of fact as to whether the [Board’s] actions were
objectively reasonable .... Unequal treatment for the same
misconduct, if proved, would present a serious jury issue”. Nance
v. New Orleans & Baton Rouge S.S. Pilots Ass’n, No. 03-3092, slip
op. at 10 (E.D. La. 13 Jan. 2005) (unpublished) (emphasis added).
A.
The collateral-order doctrine is appropriate for this
interlocutory appeal because qualified immunity vel non against
Nance’s due-process and equal-protection claims “turns on an issue
of law”: step one of qualified-immunity analysis. Michalik, 422
F.3d at 257. Restated, whether Nance shows a clearly-established
constitutional claim under current law, as discussed infra, is a
“purely legal question”. Siegert, 500 U.S. at 232.
We are not to “assume[], without deciding,” that an alleged
violation satisfies step one. Id. at 234. “This must be the
initial inquiry.” Saucier v. Katz, 533 U.S. 194, 201 (2001). For
the two-step qualified-immunity analysis, we must first determine
whether, under current law, “‘a constitutional right would have

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been violated on the facts alleged’”. McClendon v. City of
Columbia, 305 F.3d 314, 322-23 (5th Cir. 2002) (en banc) (quoting
Saucier, 533 U.S. at 200), cert. denied, 537 U.S. 1232 (2003). (In
determining whether, under current law, a clearly-established
constitutional right was violated in a particular case, “a court
might find it necessary to set forth principles which will become
the basis for a holding that a right is clearly established”.
Saucier, 533 U.S. at 201.) Second, even if such a right was
violated, the official remains protected by “qualified immunity if
his conduct was objectively reasonable” in the light of then
clearly-established law. Lukan, 183 F.3d at 346.
B.
The material examined at step one differs, of course,
depending on whether we are addressing a motion to dismiss or for
summary judgment. For the former, we examine “the defendant’s
conduct as alleged in the complaint”. McClendon, 305 F.3d at 323
(internal quotation marks omitted) (emphasis in original). For the
latter, we “no longer [permit the plaintiff to] rest on the
pleadings”, instead examining the summary-judgment evidence. Id.
(internal quotation marks omitted). Pursuant to our review of such
evidence, the § 1983 due-process and equal-protection claims fail
for the following reasons.

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1.
Procedural-due-process guarantees are invoked when a state
actor deprives an individual of a protected life, liberty, or
property interest. Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir.
2001) (“To bring a procedural due process claim under § 1983, a
plaintiff must first identify a protected life, liberty or property
interest and then prove that governmental action resulted in a
deprivation of that interest.”). For the § 1983 due-process claim,
the complaint states:
The statutory scheme for discipline of state
commissioned New Orleans and Baton Rouge
Steamship Pilots, and specifically, LA. R.S.
34:1041 et seq., as applied, unlawfully
deprived Michael P. Nance of a protected
liberty interest, that is the opportunity to
work as a state commissioned New Orleans and
Baton Rouge Steamship Pilot free from unlawful
discrimination, and further denies Michael P.
Nance adequate notice and opportunity to be
heard in violation of the 14th Amendment due
process clause of the United States
constitution.
As discussed, Nance agreed to sanctions being imposed without
utilizing a hearing or other state processes. In his brief, he
maintains the hearing would have been a “sham”. He bases this
position on an alleged statement by NOBRA’s counsel to Nance’s
then-counsel: “Look, you know we’re going to take his license. We
can take his commission. We’ve done it before”.
Viewing the summary-judgment evidence in the requisite light
most favorable to Nance, he fails, under current law, to show a

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clearly-established procedural-due-process violation. It is
questionable whether he shows a protected liberty interest, because
he does not attempt to show he is a protected public employee for
whom a liberty interest could attach. In any event, he does not
show he was deprived of procedural due process. (As noted, the
district court did not appear to base its qualified-immunity denial
on this claim. It is not mentioned. Notwithstanding our review
being de novo, the district court’s relying only on equal
protection is quite consistent with our holding no due-process
violation is shown.)
2.
Nance’s other § 1983 claim is that the Board violated his
Fourteenth Amendment right to the equal protection of the laws.
His complaint states: “The application of the alleged rules of the
Board of Examiners of NOBRA, was arbitrary and capricious and
caused certain persons, including Nance, to receive disparate and
unequal treatment in violation of Nance’s right to equal protection
of the laws”. In his brief, he maintains he was discriminated
against because of his political affiliation as a supporter of
Captain Clayton, who was ousted from the presidency of NOBRA in its
2001 elections.
Traditionally, for an Equal Protection claim, “a § 1983
plaintiff must [show in contesting summary judgment] that a state
actor intentionally discriminated against the plaintiff because of

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membership in a protected class”. Williams v. Bramer, 180 F.3d
699, 705 (5th Cir. 1999) (internal quotation omitted). The Supreme
Court has explained, however, that the Equal Protection Clause does
give rise to a claim on behalf of a “class of one” who has not
alleged membership in a class: “Our cases have recognized
successful equal protection claims brought by a ‘class of one’,
where the plaintiff [shows] that [he] has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment”. Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This requires a
plaintiff to show standards were applied differently to him than to
others similarly situated. Bryan v. City of Madison, 213 F.3d 267,
276-77 (5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).
Alternatively, the plaintiff may show that a government policy or
procedure was selectively enforced against him. Id. at 277. This
requires showing “the government official’s acts were motivated by
improper considerations, such as race, religion, or the desire to
prevent the exercise of a constitutional right”. Id.
“[I]t is clearly established that a state violates the equal
protection clause when it treats one set of persons differently
from others who are similarly situated”. Ford Motor Co. v. Tex.
Dep’t of Transp., 264 F.3d 493, 510 (5th Cir. 2001) (internal
quotation marks omitted) (alteration in original). What is less
clear, and thus probably not clearly established as required by

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step one of qualified-immunity analysis, however, is whether this
“class of one” jurisprudence applies outside the zoning land use
and assessment context, where it is typically employed. See Shipp
v. McMahon, 54 F. App’x 413 (5th Cir. 2002).
We need not determine whether the “class of one” doctrine —
much less, whether it is clearly established — applies because
Nance’s summary judgment evidence fails to demonstrate an equal-
protection violation. Although he asserts he received different
punishment than other pilots for similar infractions because of his
political affiliation with Captain Clayton, he fails to show other
pilots were both similarly situated and treated differently. See
Bryan, 213 F.3d at 276-77. Instead, he merely makes
unsubstantiated, vague assertions that he and unspecified others
received unequal treatment.
III.
For the foregoing reasons, the qualified-immunity denial for
board members Shows, Daniels, and Shirah is REVERSED and judgment
is RENDERED for them.
REVERSED and RENDERED

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