                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                     April 10, 2006

                                                       Charles R. Fulbruge III
                                                               Clerk
                           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


     *
       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this opinion should not be published and is not precedent except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.
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


                                      2
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.




                                         3
     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


                                 4
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

                                     5
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”).

                                  6
     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

                                     7
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.




                                      8
                                 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

                                 9
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


                                        10
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

                                     11
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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