     Case: 16-41462      Document: 00513954006         Page: 1    Date Filed: 04/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 16-41462
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            April 17, 2017
                                                                             Lyle W. Cayce
ARIC W. HALL,                                                                     Clerk


                                   Plaintiff - Appellant

v.

TEXAS COMMISSION ON LAW ENFORCEMENT; KIM VICKERS; JASON
HESTER; J. B. PENNINGTON, "Joe"; JAMES OAKLEY; JOEL
RICHARDSON; PATRICIA BURRUSS; PATT SCHECKEL
HOLLINGSWORTH; ROB KYKER; RON E. HOOD; RUBEN VILLESCAS;
JOHNNY E. LOVEJOY, III,

                                   Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-803


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Aric Hall sued the Texas Commission on Law Enforcement and certain
related individuals, alleging violations of 42 U.S.C. § 1983. The district court
dismissed based on sovereign and qualified immunity. We AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                FACTUAL AND PROCEDURAL BACKGROUND
       The Texas Commission on Law Enforcement (“TCOLE”) promulgates
rules governing the licensure of peace officers. See 37 TEX. ADMIN. CODE §
217.1. The TCOLE enacted a new policy in 2012 under which “peace officers
that are unemployed for two years will lose certification or licensure.” 1 The
new rule, Hall argues, replaced the prior once-licensed-always-licensed policy.
Hall contends a TCOLE employee informed him he could still renew his license
at any time if he had completed a TCOLE-approved academic alternative police
program. Hall failed to identify the employee with whom he spoke, and such
a conversation has not been corroborated.
       During the period in which he was certified, Hall applied for several law-
enforcement positions.       All his applications were rejected.          Hall allegedly
“reported crime[s]” committed by police officials and contends that doing so
prevented him from securing employment. He believes the various agencies
rejected his applications in retribution for his whistleblowing. As a result of
his lengthy unemployment, Hall lost his TCOLE certification.
       Hall sued under Section 1983, alleging that the TCOLE “denied him due
process by not allowing him to be re-certified.” He further claimed that the
TCOLE waived sovereign immunity and that the Eleventh Amendment did not
bar his claims. In response, the TCOLE filed a motion to dismiss under Rules
12(b)(1) and 12(b)(6).      It claimed that sovereign immunity operates “as a
jurisdictional bar to private suits brought in federal court against states and



       1  The TCOLE’s website confirms that “the commission will place all licenses in an
inactive status when the licensee has not been reported to the commission as appointed for
more than two years unless the licensee has met and continues to meet [all] continuing
education require[ments].” TEXAS COMMISSION ON LAW ENFORCEMENT FREQUENTLY ASKED
QUESTIONS, https://www.tcole.texas.gov/content/frequently-asked-questions (last visited
Mar. 20, 2017). The rules upon which the TCOLE and Hall rely, though, were repealed
effective February 1, 2014. See, e.g., 37 TEX. ADMIN. CODE §§ 217.13–217.21. Section 217.19,
formerly governing this revocation provision, now concerns the Texas Board of Nursing.
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their agencies.”   The individual defendants moved to dismiss under Rule
12(b)(6), arguing “that they are entitled to qualified immunity.” The district
court granted the motion to dismiss. Hall timely appealed.


                                  DISCUSSION
      We review de novo the district court’s grant of a motion to dismiss for
lack of subject-matter jurisdiction. Life Partners Inc. v. United States, 650 F.3d
1026, 1029 (5th Cir. 2011). We also review de novo the district court’s grant of
a motion to dismiss for failure to state a claim. Raj v. Louisiana State Univ.,
714 F.3d 322, 329 (5th Cir. 2013). “A pleading that states a claim for relief
must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” FED. R. CIV. P. 8(a)(2). We accept “all well-
pleaded facts as true and [view] those facts in the light most favorable to the
plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).
      A pro se complaint such as was filed here is measured by a more forgiving
standard. Id. at 461–62. A complaint need not contain “detailed factual
allegations,” but it must “raise a right to relief above the speculative level” to
survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).   “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
      On appeal, Hall primarily argues that he has been deprived of his rights
to petition and due process. He argues that his right to petition was violated
when he was allegedly denied employment after reporting crimes committed
by police officers. He argues his right to due process was violated when the
TCOLE declined to recertify him without affording him a trial or
administrative hearing. In addition to his certification, Hall claims a property
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right in the fees he paid the TCOLE when initially seeking certification. Hall
further argues that the concept of sovereign immunity is unconstitutional and
asks this court to “overturn” the line of Supreme Court precedent supporting
it. Finally, Hall claims that qualified immunity does not apply to protect the
individual defendants. For the sake of clarity, we address the institutional and
individual defendants in turn.


 I.    TCOLE
       The district court held the suit against the TCOLE is barred by sovereign
immunity.     Under the Eleventh Amendment, “an unconsenting State is
immune from suits brought in federal courts by her own citizens as well as by
citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). There
are two exceptions to the divesting of federal court of jurisdiction over such
actions. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304
(1990). First, a state may explicitly waive its sovereign immunity. Daigle v.
Gulf State Utils. Co., Local Union No. 2286, 794 F.2d 974, 980 (5th Cir. 1986).
Waiver must be unequivocal; courts require a “clear declaration” to be “certain
that the State in fact consents to suit.” Sossamon v. Texas, 563 U.S. 277, 284
(2011). Second, Congress may abrogate sovereign immunity through a clear
expression of the intent to do so if it acts “pursuant to a valid exercise of power.”
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996).
       The TCOLE is a state agency. See TEX. OCC. CODE § 1701.051(a). As
such, it is entitled to sovereign immunity to the same extent as the state itself.
See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
146–47 (1993). Neither of the exceptions to sovereign immunity apply here.
Hall offers no evidence to show that the TCOLE consented to suit. There is
also is not even a suggestion that Congress intended to abrogate sovereign
immunity in this situation.       Because either of these exceptions must be
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                                  No. 16-41462
explicitly alleged and proven, Hall failed to carry his burden to prove that
sovereign immunity does not apply. See Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001).
       Instead, Hall confines his argument to a challenge of the reasonableness
and validity of the “stream” of cases from the Supreme Court concerning
sovereign immunity. He argues that the Supreme Court has been improperly
protective of states’ immunity and insufficiently protective of individual
constitutional rights. Regardless of such policy points, we follow Supreme
Court pronouncements until that Court changes them. Medellin v. Dretke, 371
F.3d 270, 280 (5th Cir. 2004).      Consequently, the district court correctly
determined it had no subject-matter jurisdiction to hear the suit against the
TCOLE. See Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir. 1990).


II.    Individual Defendants
       The district court held the suit against the individual defendants in their
official capacities is also barred by sovereign immunity. It further held that
qualified immunity bars the suit to the extent the defendants were named in
their individual capacities. We agree.
       “[T]he principle of state-sovereign immunity generally precludes actions
against state officers in their official capacities,” subject to one exception.
McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004). Federal
courts have authority to order “state officials to conform their future conduct
to the requirements of federal law” under the dictates of Ex parte Young, 209
U.S. 123 (1908). Quern v. Jordan, 440 U.S. 332, 337 (1979). The exception is
prospective, though; the plaintiff may only sue if he “alleges an ongoing
violation of federal law . . . .” Virginia Office for Protection & Advocacy v.
Stewart, 563 U.S. 247, 255 (2011). Even the Ex parte Young exception does not
“permit a federal-court action to proceed in every case where prospective
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declaratory and injunctive relief is sought against an officer[.]” Idaho v. Coeur
d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997). Instead, we seek to “ensure
that the doctrine of sovereign immunity remains meaningful, while also giving
recognition to the need to prevent violations of federal law.” Id. at 269.
      Hall argues that the TCOLE’s 2012 policy is unconstitutional because it
denies recertification without due process, which he interprets to require a jury
trial, administrative hearing, or some other adjudicatory proceeding. Hall is
incorrect. There is no requirement “that the defendant in every civil case
actually have a hearing on the merits.” Boddie v. Connecticut, 401 U.S. 371,
378 (1971). A defendant is entitled only to “a meaningful opportunity to be
heard . . . .” Id. at 377. Hall presented no evidence to suggest the defendants
deprived him of that opportunity.
      Hall further alleges a violation of his right to petition based on his
inability to secure employment after reporting various crimes attributable to
police.   The First Amendment guarantees the right “to petition the
Government for a redress of grievances.” U.S. CONST. amend. I. Here, too,
there is no evidence to show that Hall’s right was abridged.          Instead, he
recounts numerous occasions on which he exercised his right by reporting
crimes but has failed to link that behavior with his inability to secure
employment. Hall has thus failed to raise a colorable constitutional claim; the
Ex parte Young exception does not apply; and sovereign immunity bars this
suit against the individual defendants in their official capacities. See Kinash
v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
      The suit against these defendants in their individual capacities suffers
the same defect.     “The doctrine of qualified immunity serves to shield a
government official from civil liability for damages based upon the
performance of discretionary functions if the official’s acts were objectively
reasonable in light of then clearly established law.” Thompson v. Upshur
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Cnty., 245 F.3d 447, 456 (5th Cir. 2001).        “The first step in a qualified-
immunity analysis is to determine whether the plaintiff has alleged a violation
of a clearly established federal constitutional (or federal statutory) right.” Id.
at 457.   A constitutional right is clearly established if its contours are
sufficiently clear such “that a reasonable official would understand that what
he is doing violates that right.” Id. A plaintiff seeking to overcome the defense
of qualified immunity must plead specific facts to show that the defendant is
liable for the harm caused and that qualified immunity does not apply. Backe
v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).
      In summary, Hall alleges First and Fourteenth Amendment violations
without specifying how his rights were violated.           Both his original and
amended complaints contain only vague allegations about individual
culpability. Hall thus failed to overcome the qualified-immunity defense.
      AFFIRMED.




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