Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ERIC LUCHETTI,
Plaintiff - Appellant,
v. No. 21-2109
(D.C. No. 1:20-CV-01232-RB-JFR)
THE NEW MEXICO STATE (D. N.M.)
PERSONNEL BOARD, a State Agency,
a/k/a The New Mexico State Personnel
Office; JUSTIN NAJAKA, former Director
of the State Personnel Board, individually;
PAMELA COLEMAN, Current Director of
the State Personnel Office and Current
Chair of the State Personnel Board,
individually; ROBERT ROJO, Team Lead
of Employee Relations Department,
individually; THE NEW MEXICO
CORRECTIONS DEPARTMENT, a State
Agency, a/k/a The New Mexico
Department of Corrections; MELANIE
MARTINEZ, Former Acting Secretary;
ALISHA TAFOYA-LUCERO, Current
Secretary; GERMAN FRANCO, Deputy
Director, individually,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 2
_________________________________
Before MATHESON, KELLY, and CARSON, Circuit Judges.
_________________________________
After the New Mexico Department of Corrections terminated Plaintiff Eric
Luchetti’s employment, Mr. Luchetti appealed his discharge to the New Mexico State
Personnel Board (Board). The Board reinstated him and awarded backpay. Pursuant
to a state regulation, the Board reduced his backpay by the amount of earnings he had
received from other sources between his termination and reinstatement. Mr. Luchetti
sued individual employees of the Board under 42 U.S.C. § 1983, asserting that the
offset against his backpay violated his free speech and equal protection rights. The
district court dismissed on grounds of qualified immunity, and Mr. Luchetti appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Luchetti, who is disabled, was a full-time employee of the New Mexico
Department of Corrections until his termination in 2016. He successfully appealed
his termination to the Board, which reinstated Mr. Luchetti to his former position.
The Board also awarded Mr. Luchetti backpay. The backpay amount, however, was
subject to N.M. Code R. § 1.7.12.23(B), which states:
In the event the board’s order includes any [backpay], the appellant
shall provide the agency with a sworn statement of gross earnings,
unemployment compensation, and any other earnings, including but not
limited to disability benefits received by the appellant since the
effective date of the disciplinary action. The agency shall be entitled to
offset earnings, unemployment compensation and any other earnings
received during the period covered by the [backpay] award against the
[backpay] due.
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Applying that provision, the Board offset Mr. Luchetti’s backpay award by more than
$36,000 in disability benefits and unemployment compensation Mr. Luchetti had
received since his termination.
In response to the offset, Mr. Luchetti filed a complaint in state district court,
naming as defendants the Board, the Department of Corrections, and several
individual employees.1 He asserted various state and federal claims, including the
§ 1983 claims at issue in this appeal. The defendants removed the case to federal
district court and filed a motion to dismiss arguing they were entitled to qualified
immunity. The district court agreed.2 This appeal followed.
II. DISCUSSION
Qualified immunity shields government officials from liability where “their
conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks omitted). When a defendant asserts qualified
immunity, the burden shifts to the plaintiff, who must demonstrate on the facts
alleged that (1) the defendant’s actions violated his or her constitutional or statutory
rights, and (2) the right was clearly established at the time of the alleged misconduct.
See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). “We may address
1
Mr. Luchetti later conceded the Board and the Department of Corrections
were entitled to Eleventh Amendment immunity.
2
The defendants also moved to dismiss the state claims. Rather than dismiss
them, the district court remanded the claims to the state district court. The state
claims are not at issue in this appeal.
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the two prongs of the qualified-immunity analysis in either order: If the plaintiff fails
to establish either prong of the two-pronged qualified-immunity standard, the
defendant prevails on the defense.” Cummings v. Dean, 913 F.3d 1227, 1239
(10th Cir. 2019) (brackets and internal quotation marks omitted).
A right is clearly established if “the state of the law at the time of an incident
provided fair warning to the defendants that their alleged conduct was
unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (brackets and internal
quotation marks omitted). “[F]or the law to be clearly established, there must be a
Supreme Court or Tenth Circuit decision on point, or the clearly established weight
of authority from other courts must have found the law to be as the plaintiff
maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (internal
quotation marks omitted). Clearly established law should not be defined “at a high
level of generality,” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), and should be
“particularized” to the facts of the case, Anderson v. Creighton, 483 U.S. 635, 640
(1987). “It is not enough that a rule be suggested by then-existing precedent; the
rule’s contours must be so well defined that it is clear to a reasonable [official] that
his conduct was unlawful in the situation he confronted.” City of Tahlequah v. Bond,
142 S. Ct. 9, 11 (2021) (internal quotation marks omitted).
A. Equal Protection Claim
The district held that even if Mr. Luchetti had adequately alleged an equal
protection violation, he had not demonstrated that clearly established law gave the
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defendants fair warning that their enforcement of Rule 1.7.12.23(B) violated
Mr. Luchetti’s rights. We agree.
Mr. Luchetti contends that Copelin-Brown v. New Mexico State Personnel
Office, 399 F.3d 1248 (10th Cir. 2005), is on point. In that case, the plaintiffs
challenged a New Mexico regulation providing that any disabled employees
terminated due to disability had no right to an appeal. Id. at 1252. The
corresponding regulation for non-disabled employees, however, did allow for
appeals. Id. We held that singling out disabled persons in this way did not survive
the rational-basis test. Id. at 1255. We further held the fact that the defendants were
following a regulation was only one factor in determining the objective
reasonableness of their actions—especially given that for 30 years, federal law had
“require[d] that when a state employee is terminated, that employee has a right to a
hearing to challenge the termination.” Id. at 1256.
Copelin-Brown is not on point. Unlike the regulation in Copelin-Brown, in
this case Rule 1.7.12.23(B) does not single out disabled employees. The rule
authorizes the Board to offset several types of earnings, not just disability benefits,
against backpay awarded to any reinstated employee. It applies to non-disabled
employees and disabled employees alike and does not treat disability payments
differently from other sources of income. In addition, the regulation in Copelin-
Brown violated federal statutory law. Here, Mr. Luchetti does not assert that the
offset rule in this case violates a federal statute. At most, Copelin-Brown might
suggest the constitutional rule Mr. Luchetti imputes to it, but that is insufficient to
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give the defendants fair warning that their enforcement of the offset regulation was
unconstitutional. See City of Tahlequah, 142 S. Ct. at 11.
Mr. Luchetti also argues the law was clearly established because the New
Mexico Supreme Court has held that “[p]ublic assistance and social security [are]
benefits from a collateral source, and they are not subject to offset from an award of
damages.” Smith v. FDC Corp., 787 P.2d 433, 440 (N.M. 1990). He also points to a
New Mexico uniform jury instruction explaining the collateral source rule in
calculating damages in a breach of employment contract claim. Mr. Luchetti argues
the collateral source rule is not an evidentiary rule as characterized by the district
court, but “a rule of pure legal substance arising from [New Mexico] public policy.”
Opening Br. at 17 (italics omitted). Even accepting this characterization, it is an
insufficient basis for asserting a violation of a constitutional or federal statutory right
under § 1983. New Mexico’s collateral source rule simply could not have provided
the defendants fair warning that their enforcement of Rule 1.7.12.23(B) was
unconstitutional.
B. First Amendment Retaliation Claim
Mr. Luchetti alleged the defendants enforced Rule 1.7.12.23(B) in retaliation
for his appealing his termination and testifying before the Board. The district held
that even if Mr. Luchetti had adequately alleged First Amendment retaliation,3 he had
3
Much of Mr. Luchetti’s opening brief focused on whether he had adequately
alleged the elements of a First Amendment retaliation claim. Because we affirm the
district court’s ruling on the clearly established prong, we need not address whether
Mr. Luchetti adequately pleaded a constitutional violation.
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not demonstrated that clearly established law fairly warned the defendants that their
enforcement of Rule 1.7.12.23(B) constituted First Amendment retaliation. We agree
with this holding as well.
Mr. Luchetti conceded in his opening brief that there is no case precisely on
point. Opening Br. at 32. In his reply brief, however, Mr. Luchetti cites to Van
Deelen v. Johnson, 497 F.3d 1151 (10th Cir. 2007). That case involved a plaintiff’s
claim that after he successfully sued a county, the county officials improperly
increased his property taxes and subjected him to other forms of intimidation. Id. at
1153-54. Van Deelen therefore is not “particularized” to the facts of Mr. Luchetti’s
case. Anderson, 483 U.S. at 640. Mr. Luchetti emphasizes Van Deelen’s observation
that “a private citizen exercises a constitutionally protected First Amendment right
anytime he or she petitions the government for redress; the petitioning clause of the
First Amendment does not pick and choose its causes. The minor and questionable,
along with the mighty and consequential, are all embraced.” 497 F.3d at 1156. We
fail to see how this general proposition could have given the defendants fair warning
that enforcing Rule 1.7.12.23(B) would violate Mr. Luchetti’s First Amendment
rights.
Mr. Luchetti also cites Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000). In
Worrell, the plaintiff claimed that a defendant law enforcement officer caused the
district attorney to withdraw a job offer in retaliation for the plaintiff’s trial
testimony that was critical of law enforcement. Id. at 1200. We held the right to
testify truthfully was clearly established, and the defendant therefore was not entitled
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to qualified immunity. Id. at 1216. Mr. Luchetti argues that the defendants in this
case likewise enforced Rule 1.7.12.23(B) in retaliation for Mr. Luchetti’s testimony
at the hearing on his termination. Elsewhere in his brief, however, Mr. Luchetti says
the defendants did not retaliate for his testimony, but rather that “regulatory
retaliation . . . was already in place and waiting for Mr. Luchetti when he began his
public testimony.” Opening Br. at 25. In any case, Worrell—involving an officer’s
interference with a job offer in retaliation for testimony in a murder case—would not
have given the defendants fair warning that offsetting Mr. Luchetti’s backpay award
pursuant to a state regulation constitutes First Amendment retaliation.4
Mr. Luchetti also cites two federal district court cases: Nave v. Independent
School District No. 20, No. CIV-17-096-KEW, 2018 WL 6419296 (E.D. Okla. Dec.
6, 2018) and Ray Westall Operating, Inc. v. Richard, No. CV 20-302 KG/GJF,
2021 WL 107247 (D.N.M. Jan. 12, 2021). Neither case involves facts that are even
remotely similar to the facts of Mr. Luchetti’s case. And even if they were similar,
“for the law to be clearly established, there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Halley, 902 F.3d at 1149
(internal quotation marks omitted). Nave and Ray Westall do not meet that standard.
4
Perhaps recognizing that neither Worrell nor Van Deelen are sufficient to
satisfy the clearly-established prong, Mr. Luchetti argues those decisions evince such
robust First Amendment protection that a plaintiff need only plausibly plead the
elements of First Amendment retaliation in order to overcome the qualified immunity
defense. We decline Mr. Luchetti’s invitation to abandon the clearly-established
prong in cases involving First Amendment retaliation.
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Finally, Mr. Luchetti urges us to apply a “sliding scale” in which “the more
obviously egregious the conduct in light of prevailing constitutional principles, the
less specificity is required from prior case law to clearly establish the violation.”
Browder v. City of Albuquerque, 787 F.3d 1076, 1082 (10th Cir. 2015) (internal
quotation marks omitted). Our more recent jurisprudence, however, has observed
that the “sliding scale” approach “may arguably conflict with recent Supreme Court
precedent on qualified immunity.” Lowe v. Raemisch, 864 F.3d 1205, 1211 n.10
(10th Cir. 2017). Instead, we have suggested a “flagrantly unlawful” or “obvious
clarity” standard. Id. at 1208, 1211; see also Contreras ex rel. A.L. v. Doña Ana
Cnty. Bd. of Cnty. Comm’rs, 965 F.3d 1114, 1123 (10th Cir. 2020) (Carson, J.,
concurring). But even if the “sliding scale” is still the rule in this Circuit, Mr.
Luchetti’s allegations do not rise to a level of egregiousness justifying its application.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court
Entered for the Court
Joel M. Carson III
Circuit Judge
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