                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0126n.06

                                           No. 19-1229

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 MICHIGAN INTERLOCK, LLC; MICHELE I. )
 COMPTON,                            )                                      FILED
                                     )                                 Feb 28, 2020
     Plaintiffs-Appellants,          )                             DEBORAH S. HUNT, Clerk
                                     )
 v.                                  )
                                     )                          ON APPEAL FROM THE
 ALCOHOL DETECTION SYSTEMS, LLC; DEI )                          UNITED STATES DISTRICT
 HOLDINGS, INC.,                     )                          COURT FOR THE EASTERN
                                     )                          DISTRICT OF MICHIGAN
      Defendants,                    )
                                     )
 HONORABLE RUTH JOHNSON,             )
                                     )
      Defendant-Appellee.            )
                                     )

BEFORE: GIBBONS, KETHLEDGE and BUSH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Michigan Interlock LLC and its owner Michele

Compton (together, “Interlock”) distributed Breath Alcohol Ignition Interlock Devices (“BAIIDs”)

in Michigan.    When Interlock was removed from a list of certified BAIID manufacturers

distributed by the Michigan Secretary of State, Interlock filed suit pursuant to 42 U.S.C. § 1983.

As relevant here, Interlock alleges that Michigan Secretary of State Ruth Johnson effectuated an

unlawful taking and deprived Interlock of its right to both substantive and procedural due process.

Interlock names Johnson in both her individual and official capacities.

       The district court dismissed each of the federal claims, finding that (1) sovereign immunity

barred Interlock’s procedural due process claim against Johnson in her official capacity, (2)

Interlock lacked standing to bring its substantive due process and unlawful takings claims against
No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


Johnson in her official capacity, and (3) qualified immunity barred all claims against Johnson in

her individual capacity. We agree with the district court that Interlock lacks standing to pursue its

official capacity claims and that Johnson is entitled to qualified immunity for the claims in her

individual capacity. We therefore affirm the district court’s dismissal of Interlock’s § 1983 claims.

                                                   I.

        Michele Compton founded Interlock to distribute, install, and service BAIIDs in Michigan.

Interlock is a certified service provider authorized to service and install BAIIDs in Michigan. A

BAIID is “a breath alcohol analyzer” that “connects with a motor vehicle’s ignition” to “estimate[]

a driver’s bodily alcohol content and prevent[] a vehicle from starting if the would-be-drivers’

breath alcohol meets or exceeds” the legal limit. DE 9, Am. Compl., Page ID 208 ¶ 28. The

Michigan Department of State (“Department”) is required to revoke a habitual drunk driver’s

license; if the habitual drunk driver is eligible for a restricted license, the Department requires him

to install a BAIID on any vehicle he owns or operates. Data collected from the BAIID is

automatically transmitted to the Department to determine if the driver is attempting to operate the

vehicle while intoxicated.

        Manufacturers seeking to operate in Michigan must be certified by the Department and

comply with the statutory requirements. A “manufacturer or service provider may not lease,

install, or service BAIIDs in Michigan unless and until it is certified . . . and placed on [the] list of

approved vendors.” Id. ¶ 31. The list of certified BAIID manufacturers is provided to drivers that

are required to install a BAIID to operate a motor vehicle. The Department’s certified BAIID

manufacturer list includes not only the manufacturer’s name and contact information but also the

manufacturer’s designated service provider and its telephone number.




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


       From 2006 to 2016, Interlock operated as BAIID manufacturer Alcohol Detection Systems

LLC’s (“ADS’s”) exclusive distributor in Michigan and was included on the Department’s list of

certified BAIID manufacturers as ADS’s service provider in Michigan.

       In March 2016, Michigan required BAIIDs “to be equipped with cameras capable of

recording a digital image of the individual providing the [breath] sample” by June 2016. Id. ¶¶ 2,

54. The law also provided the Department with authority to suspend and revoke manufacturer

certification for various reasons. After the Department entered a suspension order, a manufacturer

could submit an application to have a hearing on the order. The BAIIDs Interlock used did not

have cameras, so Interlock secured $1.6 million in loans “to pay ADS to manufacture and supply

the upgraded camera units.” Id. ¶¶ 3, 59.

       In January 2018, DEI Holdings, Inc., d/b/a Directed Electronics, Inc. (“DEI”) purchased

ADS and sought to distribute and install BAIIDs in Michigan.

       On March 7, 2018, the Department and the Secretary (together, “State Defendants”) filed

a summary suspension complaint and order decertifying ADS’s BAIIDs for several reasons,

including that the BAIIDs failed to: function properly, include software upgrades, periodically take

samples, and automatically report their data. The State Defendants did not provide Interlock with

notice or an opportunity to contest the order. Further, the State Defendants issued a press release

the next day that “instructed customers ‘to contact Michigan Interlock to have [their BAIID]

removed—for free—and have a new device installed by one of five approved manufacturers.’” Id.

¶ 86. The State Defendants also notified Michigan state courts that ADS’s BAIIDs were no longer

certified, and therefore “any driver with an ADS device will need to contact Michigan Interlock to

have the device removed at no cost.” Id. ¶ 87.




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


       Shortly after the order issued, the State Defendants met with ADS to negotiate a

modification order recertifying ADS’s BAIIDs. Interlock was not informed or offered the

opportunity to contest ADS’s decertification. On March 31, 2018, ADS represented to Interlock

that the Department “no longer wanted [Interlock] on the Department’s list of approved vendors,”

and the Department removed Interlock from the list of certified BAIID manufacturers. Interlock

also alleges that ADS “remov[ed] [Interlock] from Michigan’s approved list of vendors.” Id. ¶¶

114, 123, 149, 152. The Department thereafter listed ADS as its own service provider on the

certified BAIID manufacturer list. The State Defendants did not provide Interlock with notice of

its removal from the list as a designated service provider or an opportunity to contest the decision.

       As a result of the order, Interlock lost customers and had to reimburse numerous mechanics

for deinstallation costs. ADS refused to reimburse Interlock for any of the deinstallation costs.

Interlock also alleged ADS and DEI interfered with its business by “entering [its] property without

permission, accessing their computers, phones, files, and systems without permission, and

otherwise conducting business with [Interlock’s] BAIIDs—without permission.” Id. ¶ 106.

       Interlock filed suit against ADS and DEI, the Michigan Department of State, and Secretary

Johnson in her official and individual capacities. Interlock brought three § 1983 claims against

Johnson in her official and individual capacities for denial of procedural due process, substantive

due process, and unlawful taking. The claims against the Michigan Department of State, ADS,

and DEI were dismissed without prejudice. Only the claims against Johnson remain.

       Johnson moved to dismiss, and the district court granted Johnson’s motion. The district

court found that, because Interlock sought no prospective injunctive relief, its procedural due

process claim against Johnson in her official capacity was barred by sovereign immunity. It also

found that Interlock lacked standing to bring the substantive due process and unlawful taking



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


claims against Johnson in her official capacity because the non-monetary harms alleged by

Interlock were neither caused nor redressable by Johnson. With respect to the individual capacity

claims, the district court held that Johnson was entitled to qualified immunity. Interlock appeals

the district court’s standing and qualified immunity determinations.

                                                 II.

       Whether the district court was correct in dismissing Interlock’s claims under Rule 12(b)(6)

is a question of law that we review de novo. League of United Latin Am. Citizens v. Bredesen,

500 F.3d 523, 527 (6th Cir. 2007). We review the district court’s determination of Article III

standing and entitlement to qualified immunity de novo. Kanuszewski v. Mich. Dep’t of Health &

Human Servs., 927 F.3d 396, 405 (6th Cir. 2019); Sutton v. Metro. Gov’t of Nashville & Davidson

Cty., 700 F.3d 865, 871 (6th Cir. 2012).

       A plaintiff’s complaint must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “While a complaint attacked by a Rule

12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal citations

omitted). The complaint must not only include legal conclusions, but must also make factual

allegations, which are accepted as true to state a plausible claim for relief. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “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.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). When considering plausibility, “the court




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


must construe the complaint in the light most favorable to the plaintiff.” Strayhorn v. Wyeth

Pharm., Inc., 737 F.3d 378, 387 (6th Cir. 2013).

        “Assessment of the facial sufficiency of the complaint must ordinarily be undertaken

without resort to matters outside the pleadings.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).

“[A] court may consider exhibits attached to the complaint, public records, [and] items appearing

in the record of the case, . . . so long as they are referred to in the complaint and are central to the

claims contained therein . . . .” Kaminski v. Coulter, 865 F.3d 339, 344 (6th Cir. 2017) (quoting

Gavitt, 835 F.3d at 640). Here, Interlock’s complaint references various documents that are central

to its claims and included by Secretary Johnson in her motion to dismiss. These include the order

of summary suspension, the order dismissing summary suspension complaint and summary

suspension order, the stipulated agreement modifying the order of summary suspension, and the

list of certified BAIID manufacturers. These documents are considered in evaluating Interlock’s

§ 1983 claims.

                                                  III.

        On appeal, Interlock contends that the district court erred in dismissing the 42 U.S.C. §

1983 claims. Interlock argues that (1) it has standing to pursue both its due process and unlawful

taking claims against Johnson in her official capacity, and (2) Johnson is not entitled to qualified

immunity. We disagree. First, Interlock lacks standing to pursue its official capacity claims as its

alleged harms are not redressable by Johnson. Second, Johnson is entitled to qualified immunity

for the individual capacity claims because her conduct did not violate a constitutional right that

was clearly established. We therefore affirm the district court’s grant of Johnson’s motion to

dismiss Interlock’s constitutional claims.




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


                                                  A.

       Article III, § 2 of the Constitution provides that the judicial power of the United States

extends only to cases and controversies. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). As

a threshold requirement for federal jurisdiction, a plaintiff must show:

               (1) he has suffered an injury-in-fact that is both ‘(a) concrete and
               particularized, and (b) actual or imminent, not conjectural or
               hypothetical’; (2) the injury is fairly traceable to the defendant’s
               conduct; and (3) it is likely that the injury will be redressed by a
               favorable decision.

Binno v. Am. Bar Ass’n, 826 F.3d 338, 344 (6th Cir. 2016) (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 560–61 (1992)).

       “To establish causation, a plaintiff must show a ‘causal connection between the injury and

the conduct complained of,’ or, in other words, that the injury alleged is ‘fairly . . . trace[able] to

the challenged action of the defendant.’” Durham v. Martin, 905 F.3d 432, 434 (6th Cir. 2018)

(quoting Lujan, 504 U.S. at 560). The injury alleged cannot be the result of “the independent

action of some third party.” Lujan, 504 U.S. at 560 (quoting Simons v. E. Ky. Welfare Rights Org.,

426 U.S. 26, 41–42 (1976)).

       Under Article III, the relief sought by a plaintiff also “must provide redress for the

injury.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 715 (6th Cir. 2015). “An injury is

redressable if a judicial decree can provide ‘prospective relief’ that will ‘remove the harm.’” Doe

v. DeWine, 910 F.3d 842, 850 (6th Cir. 2018) (quoting Warth v. Seldin, 422 U.S. 490, 505

(1975)). “Redress is sought through the court, but from the defendant. . . . The real value of the

judicial pronouncement—what makes it a proper judicial resolution of a ‘case or controversy’

rather than an advisory opinion—is in the settling of some dispute which affects the behavior of

the defendant towards the plaintiff.” Id. (quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)). A



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


plaintiff suing a public official “can satisfy the causation and redressability requirements of

standing by demonstrating ‘a meaningful nexus’ between the defendant and the asserted injury.”

Durham, 905 F.3d at 434 (quoting Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014)).

         “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly . . . allege facts

demonstrating’ each element.” Spokeo, Inc., 136 S. Ct. at 1547. This court reviews de novo a

district court’s determination of Article III standing. Kanuszewski v. Mich. Dep’t of Health &

Human Servs., 927 F.3d 396, 405 (6th Cir. 2019).

                                                         1.

         Here, Interlock lacks standing to bring its official capacity claims. Interlock argues that

the district court erred in determining that it lacked standing to bring its substantive due process

and unlawful takings claims against Johnson in her official capacity.1 Interlock alleges two

prospective injuries in its complaint: its continued removal from the Department’s certified BAIID

manufacturer list and the Department’s continued use of the data from the BAIIDs Interlock owns.

First, because Johnson has neither the authority nor ability to designate a BAIID manufacturer’s

service provider, the harm alleged from Interlock’s removal from the certified BAIID

manufacturer list is not redressable by Johnson in her official capacity. Second, because ADS is

responsible for determining whether or not the BAIIDs continue to transmit the data collected from

the drivers to the Department, the harm alleged from the Department continuing to receive the

BAIID data is also not redressable by Johnson in her official capacity.

         Interlock lacks standing to pursue its substantive due process claim.                        Drawing all

reasonable inferences in favor of Interlock, the complaint alleges a prospective injury from

Interlock’s continuing removal as a designated service provider on the Department’s list of


1
 Interlock does not challenge the district court’s holding that its official-capacity procedural due process claim was
barred by the Eleventh Amendment.

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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


certified BAIID manufacturers. However, even if Interlock adequately alleged it is injured by its

continuing removal from the list, that injury is not redressable by Johnson. Michigan Compiled

Laws § 257.625k sets forth the procedures for a BAIID manufacturer to obtain certification of its

devices by the state and the Department’s requirement to provide drivers a list of certified BAIID

manufacturers. The statute does not require the Department to provide a list of service centers

available in the state. The manufacturer is the entity that designates its service centers and

installers, as well as monitors their compliance with the statute. See id. § 257.625k(14), (19). As

Interlock’s complaint recognizes, the Department issued its summary suspension order because

ADS’s BAIIDs did not comply with the statute’s requirements. When ADS’s BAIIDs were

decertified, it was removed from the Department’s certified BAIID manufacturer list. When

ADS’s BAIIDs were recertified after ADS’s negotiation with the Department, Interlock would

have been able to service and install these devices if ADS continued to work with Interlock. For

this reason, Interlock has not adequately alleged, and the Michigan statute does not provide, that

Johnson is able to or responsible for designating a manufacturer’s service provider listed on the

certified BAIID manufacturer list. The district court was therefore correct to find that Interlock’s

complaint fails to adequately allege due process injuries redressable by Secretary Johnson in her

official capacity.

        Interlock also lacks standing to pursue its unlawful taking claim because Johnson likewise

cannot redress the fact that the BAIIDs continue to report the data collected to the Department. In

its complaint, Interlock fails to allege that it “owned” the data created by drivers’ use of the

BAIIDs. The complaint alleges only that Interlock “had [c]onstitutionally-protected use, property,

and liberty interests in their BAIIDs [and] the data produced by and housed on their BAIIDs.” DE

9, Am. Compl., PageID 265 ¶ 244. Interlock failed to plead that there was a contractual



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


relationship or other mechanism through which the data produced by the BAIID was owned by

Interlock. Without adequately alleging that it had a right to the data produced by the BAIID it

owned, Interlock fails to allege an injury-in-fact sufficient to support its unlawful taking claim.

With regard to causation and redressability, the complaint states that “the State Defendants are

presently using [Interlock’s] BAIIDs and data without [Interlock’s] consent” and “collecting,

interpreting, analyzing and using data produced by and housed on [Interlock’s] BAIIDs.” Id. ¶

109.   As the complaint notes, however, when functioning properly, the devices are set to

automatically report the data to the Department. The BAIIDs’ reporting of the data to the

Department is not an action taken by Johnson or the state. The fact that the BAIIDs are continuing

to report the data to the Department is an action taken by ADS, not the Department. Even while

Interlock possessed and controlled the devices, ADS was “responsible for reporting the data from

[Interlock’s] customers directly to the Department.” Id. ¶ 122. ADS is the entity with the ability

to terminate the BAIIDs’ data reporting capabilities. The alleged harm from the BAIIDs’

continuing reporting of data to the Department is thus not redressable by Johnson.

                                                   2.

        Interlock has standing to pursue its individual capacity claims. With regard to the due

process claims, Secretary Johnson’s removal of Interlock from the Department’s list of certified

BAIID manufacturers without notice and an opportunity for a hearing allegedly caused Interlock

to suffer economic injury since it precluded Interlock from installing, servicing, and removing

BAIIDs, as well as required it to remove the allegedly defective ADS BAIIDs. Such economic

injury is sufficient to satisfy the injury-in-fact requirement. See Club Italia Soccer & Sports Org.,

Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 294 (6th Cir. 2006). “[A] plaintiff need not have a

‘legal right,’ or a right protected by the law of property, contract, tort, or statute, to suffer injury-



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


in-fact.” Id. at 292 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

153 (1970)). As discussed above, there is still a question whether the alleged economic harm

suffered was caused by ADS’s decisions, not Johnson’s actions, but reading the complaint to

provide all inferences in favor of Interlock, it alleges that Johnson removed Interlock from the

Department’s list, thereby depriving it of the ability to install and service BAIIDs in Michigan.

The economic injury alleged by Interlock can be redressed by monetary damages paid by Johnson

in her individual capacity.

        Interlock has not pled more than conclusions to support its first unlawful takings claim that

Johnson physically took possession of its BAIIDs, so it does not have standing to pursue this claim.

Mere legal conclusions do not satisfy a plaintiff’s burden to adequately plead a cause of action.

The complaint must not only include legal conclusions, but must also make factual allegations,

which, if accepted as true, state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The complaint alleges that ADS and DEI unlawfully converted the BAIIDs purchased and

owned by Interlock, stating that ADS and DEI “took control over, and began installing,

uninstalling, distributing, servicing, selling, delivering, transfering, altering, leasing, and otherwise

using [Interlock’s] BAIID units (including the Camera Units) without [Interlock’s] permission.”

DE 9, Am. Compl., ¶ 229(b); see id. ¶¶ 224–241, 106. The complaint fails to allege that Johnson

or the Department took any action incompatible with Interlock’s ownership interest in its BAIIDs.

        Interlock’s second unlawful takings claim is that it lost money as a result of the Department

directing it to remove the decertified BAIIDs from its customers vehicles. As Interlock notes in

its complaint, the Department’s suspension order directed ADS, not Interlock, to uninstall the

decertified BAIIDs from its customers’ vehicles. However, Interlock alleges that the Department’s

press release “instructed customers ‘to contact Michigan Interlock to have [their BAIID] removed–



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


–for free—and have a new device installed by one of five approved manufacturers.’” DE 9, Am.

Compl., Page ID 223 ¶ 86. “[C]onstru[ing] the complaint in the light most favorable to the

plaintiff,” Interlock alleged an economic injury from the deinstallation costs, caused by Johnson

directing Interlock to remove customers’ BAIIDs at no expense to the customer, and redressable

by damages from Johnson. Strayhorn v. Wyeth Pharm., Inc., 737 F.3d 378, 387 (6th Cir. 2013).

Thus, Interlock has standing to pursue its unlawful taking claim for the deinstallation costs.

                                                  B.

       Qualified immunity shields public officials “from undue interference with their duties and

from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).

It is not a “mere defense to liability”; the doctrine provides “immunity from suit.” Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985). “Public officials thus are eligible for qualified immunity if

(1) they did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not

‘clearly established’ at the time of the alleged misconduct.” Citizens in Charge, Inc. v. Husted,

810 F.3d 437, 440 (6th Cir. 2016) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). This

court may review either prong of the analysis first, and “[i]f either prong is not met, then the

government officer is entitled to qualified immunity.” Cahoo v. SAS Analytics Inc., 912 F.3d 887,

897 (6th Cir. 2019) (quoting Doe v. Miami Univ., 882 F.3d 579, 604 (6th Cir. 2018)).

       Once a defendant raises a qualified immunity defense, the plaintiff bears the burden of

showing that a defendant is not entitled to qualified immunity. Bletz v. Gribble, 641 F.3d 743, 750

(6th Cir. 2011). “To survive the motion to dismiss on qualified-immunity grounds, the plaintiff

must allege facts that ‘plausibly mak[e] out a claim that the defendant’s conduct violated a

constitutional right that was clearly established law at the time, such that a reasonable officer would

have known that his conduct violated that right.’” Courtright v. City of Battle Creek, 839 F.3d



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


513, 518 (6th Cir. 2016) (quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)). This

court has cautioned that although qualified immunity claims should be resolved early, “it is

generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of

qualified immunity.” Id. (quoting Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)). The

court reviews the district court’s decision that Johnson is entitled to qualified immunity de novo.

Sutton v. Metro. Gov’t of Nashville & Davidson Cty., 700 F.3d 865, 871 (6th Cir. 2012).

       We begin with the second prong of the qualified immunity test: whether the constitutional

rights at issue were clearly established. “This inquiry turns on the ‘objective legal reasonableness

of the action, assessed in light of the legal rules that were clearly established at the time it was

taken.’” Pearson, 555 U.S. at 244 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). At issue

is whether it was clearly established that Interlock had a right to notice and an opportunity to be

heard when Johnson decertified ADS’s BAIIDs and removed Interlock from the Department’s

certified BAIID manufacturer list, as well as whether Johnson could not direct Interlock to

uninstall the decertified BAIID devices without just compensation. We cannot say that “in the

light of pre-existing law the unlawfulness [was] apparent.” Thomas v. Cohen, 304 F.3d 563, 569

(6th Cir. 2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

       A right is clearly established when the “contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.” Morrison v. Bd. of

Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009) (quoting Anderson, 483 U.S. at 640). “[T]he

clearly established law must be ‘particularized’ to the facts of the case,” and “in the light of pre-

existing law the unlawfulness must be apparent.” White v. Pauly, 137 S. Ct. 548, 552

(2017) (quoting Anderson, 483 U.S. at 640). While there need not be “a case directly on point”

for the law to be clearly established, “existing precedent must have placed the statutory or



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

       At the time Johnson acted, no court had declared the Michigan statute unconstitutional, and

Johnson acted reasonably in enforcing it. See Citizens in Charge, 810 F.3d at 440–41. “When

public officials implement validly enacted state laws that no court has invalidated, their conduct

typically satisfies the core [qualified immunity] inquiry—the ‘objective reasonableness of an

official’s conduct’—that the immunity doctrine was designed to test.” Id. at 441 (quoting Harlow,

457 U.S. at 818). A presumption of constitutionality accompanies validly enacted state legislation,

“a presumption on which executive officials generally may depend in enforcing the legislature’s

handiwork.” Id.

        “The enforcement of a presumptively valid law . . . does not automatically entitle officials

to qualified immunity. Some laws may be ‘so grossly and flagrantly unconstitutional’ that any

reasonable officer would decline to enforce them.” Id. at 442 (quoting Michigan v. DeFillippo,

443 U.S. 31, 38 (1979)). Here, Michigan’s law providing manufacturers procedural rights upon

decertification of their BAIIDs, but not providing such rights to non-manufacturers is not “so

grossly and flagrantly unconstitutional” that Secretary Johnson was unreasonable in enforcing it.

Moreover, although the statute at issue did not vest property or liberty interests in the certification

of a manufacturer’s BAIIDs in entities other than the manufacturer, that decision by the legislature

was not unreasonable nor “grossly and flagrantly” unconstitutional.

       Johnson’s conduct here was reasonable and complied with the Michigan statute she was

tasked with enforcing. Interlock has not alleged that it has a right that was clearly established at a

particularized level. Interlock cites to cases involving a generalized right to due process when the

government deprives a citizen of a property or liberty interest, but these cases do not address the

particular right asserted here. Interlock fails to cite a case from the Supreme Court or Sixth Circuit



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that clearly establishes that it has a property and liberty interest in the state including it on the list

of certified BAIID manufacturers protected by the Due Process Clause. Interlock also fails to cite

any Michigan court case determining that it has these alleged rights. Not a single case instructed

Johnson to provide Interlock notice or an opportunity for a hearing or required her to include

Interlock on the list of certified BAIID manufacturers. Given that Interlock bears the burden of

presenting such a case to overcome qualified immunity, this failure is fatal to its position.

        Interlock’s brief also cites to the general proposition that “[a]n individual’s right not to

have her real property confiscated by governmental officials for reasons that lack any rational

connection to a plausible conception of the public interest has been clearly established for a very

long time.” CA6 R. 25, Appellant Br., Page ID 37 (quoting Montgomery v. Carter County, 226

F.3d 758, 771 (6th Cir. 2000)). Property and liberty rights are not clearly established at such a

general level, and Interlock cannot to cite to any “existing precedent [that] ha[s] placed the

statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.

        As a public official carrying out her duties under a validly enacted state law that had not

been held unconstitutional or otherwise challenged, and that did not include any procedural rights

for non-manufacturers, it was not clearly established that Johnson was required to provide notice

and an opportunity to be heard, or that her actions would inhibit Interlock’s ability to operate in

the state. See Citizens in Charge, Inc., 810 F.3d at 440. Thus, Johnson is entitled to qualified

immunity on all three claims.




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


                                                VI.

       Because the district court correctly concluded that Interlock lacked standing for its claims

against Johnson in her official capacity and that Johnson was entitled to qualified immunity for

Interlock’s claims against her in her individual capacity, we affirm.




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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


       JOHN K. BUSH, Circuit Judge, concurring. I concur in the Majority’s thoughtful

opinion and write separately only to offer the following observations about our holding that

Interlock does not have standing to bring its official-capacity substantive due process claims

because its injury is not redressable.

       I agree that Interlock’s alleged injury—its inability to conduct business as a BAIID service

provider in Michigan—cannot be remedied unless ADS resumes its contractual arrangement with

Interlock. Although this court could conceivably order Secretary Johnson to identify Interlock as

ADS’s service provider on the State Department’s list of BAIID manufacturers (assuming a

substantive due process violation were found), that remedy alone would not redress Interlock’s

alleged injury.

       The official-capacity substantive due process claim concerns only one purported harm:

Interlock’s ongoing omission from the “Ignition Interlock Manufacturers List,” which appears on

the State Department’s website. This manufacturers’ list includes the name of each manufacturer

and identifies the manufacturer’s designated service provider as its point of contact. When

Interlock served as ADS’s exclusive distributor, Interlock was designated as such on the

manufacturers’ list. However, after ADS’s BAIIDs were summarily de-listed and subsequently

re-certified, ADS designated itself as its own service provider on the manufacturers’ list and

refused to honor the exclusive distributorship agreement.

       Interlock has alleged a concrete, particularized injury because, according to the complaint,

Interlock has not been able to operate as a BAIID service provider in Michigan since ADS

terminated the exclusive distributor agreement and began operating as its own service provider.

Further, although a somewhat close question, the complaint also alleges that this injury was caused

by Secretary Johnson. To be sure, ADS began its efforts to oust Interlock as its service provider



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


at least as early as September 2017—long before any action by the State Department. However,

ADS did not begin to pressure Interlock into signing away its rights as exclusive distributor until

after Secretary Johnson decertified ADS’s BAIIDs. Further, ADS did not send Interlock the

termination of the agreement until negotiations between ADS and the State Department to

re-certify the BAIIDs had commenced; and, when those negotiations completed, ADS informed

Interlock that it had designated itself as its own service provider at the State Department’s request.

Taken together, these facts are likely sufficient to suggest a causal connection between the State

Department’s actions and ADS’s decision to cut off its relationship with Interlock.

       However, Interlock’s alleged injury—the loss of its status as ADS’s service provider—is

not redressable because this harm cannot be remedied unless ADS—no longer a party to this

lawsuit—resumes its contractual arrangement and restores Interlock as its service provider. We

have regularly observed that “[r]edressability is typically more difficult to establish where the

prospective benefit to the plaintiff depends on the actions of independent actors.” Parsons v. U.S.

Dep’t of Justice, 801 F.3d 701, 715–16 (6th Cir. 2015) (citing ASARCO, Inc. v. Kadish, 490 U.S.

605, 615 (1989)); see Durham v. Martin, 905 F.3d 432, 434 (6th Cir. 2018). For such a claim, the

plaintiff must show “‘a meaningful nexus’ between the defendant and the asserted injury.”

Durham, 905 F.3d at 434 (quoting Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014)); see

Parsons, 801 F.3d at 717. Interlock fails to allege such a nexus here.

       Even accepting that ADS used the State Department and the summary suspension as a

“pretext and justification” to terminate the exclusive distribution agreement, R. 9 at PageID 202

¶ 6, and further accepting that Secretary Johnson made statements during the negotiations which

in part caused ADS to terminate the agreement, there is nothing in the complaint to indicate that

ADS would resume its contractual agreement if Secretary Johnson simply added Interlock back to



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


the manufacturers’ list as ADS’s designated service provider. Simply put, Secretary Johnson’s

saying it—that Interlock is ADS’s service provider—would not make it so.

       Interlock’s argument to the contrary assumes that Secretary Johnson’s relisting of Interlock

as ADS’s service provider would provide Interlock with some legal benefit. It would not. The

closest Interlock comes to making an allegation of benefit is its contention that its omission from

the manufacturers’ list “made [Interlock] ineligible to conduct business, receive customers from

the [State] Department, or remain in business.” R. 9 at PageID 269 ¶ 258. But, upon examination

of the governing statute, it is clear that Interlock’s omission from the list had no legal significance

to Interlock.

       The manufacturers’ list exists because of Michigan Compiled Laws Annotated

§ 257.625k(1), which imposes requirements on manufacturers seeking certification and states that

“the department shall provide a list of all manufacturers of approved certified devices to each

person who is approved to be issued a restricted license that permits the person to drive a vehicle

only if equipped with a BAIID.” Id. § 257.625k(1)(b). To be included on the list, a manufacturer

must provide certain documents certifying its compliance, and it must also agree to establish

service locations within the state and comply with monitoring and reporting requirements. See id.

§ 257.625k(5).

       The 2016 amendments authorize the State Department to “order a summary suspension or

revocation of the certification of a manufacturer and its device from the list of approved certified

BAIIDs under section 625k” for various reasons. Id. § 257.625q(10). It is this authority that

Secretary Johnson exercised when she initially de-listed ADS in March of 2018. Based on the

statutory language, “revocation of the certification . . . from the list,” it is likely that a

manufacturer’s inclusion on the list itself has legal significance.



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No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


         However, the same cannot be said for service providers like Interlock. Service providers

are subject to a different set of regulatory requirements, set out at Michigan Compiled Laws

§ 257.625k(14). That subsection imposes myriad obligations on putative service providers, but

makes no mention of the manufacturers’ list. There is nothing in the statutory language or structure

to indicate that a service provider’s certification is contingent upon its inclusion in the

manufacturers’ list. This reading is consistent with the Summary Revocation Order, which

removed both ADS and Interlock from the list and ordered that “[t]he certification of Alcohol

Detection Systems and its BAIID device, is hereby SUMMARILY SUSPENDED,” R. 13-2 at

PageID 456, without any discussion of Interlock’s certification as a service provider.1

         To be sure, the complaint does purport to allege that Interlock’s certification was

contingent upon inclusion on the manufacturers’ list, asserting that “[o]nly companies appearing

on the list of approved vendors are allowed to install and service BAIIDs in Michigan,” R. 9 at

PageID 209 ¶ 31; “[b]ecause [Interlock] was removed from the Department’s list of approved

vendors, [Interlock] was barred from conducting business in Michigan,” id. at PageID 228–29

¶ 103; and “[t]he State Department’s removal of [Interlock] from its list of approved vendors . . .

made [Interlock] ineligible to conduct business, receive customers from the Department, or remain

in business,” id. at PageID 269 ¶ 258. But these conclusory statements are unsupported by specific

factual allegations and cannot be credited in light of the plain statutory language.2


1
  It may be that ADS’s inclusion on the list had implications for Interlock. Section 257.625k(14)(A) provides that
“[o]nly service centers that are BAIID manufacturer and vendor approved shall install, service, or remove BAIIDs
approved for use in this state.” It is unclear as to whether such manufacturers must be certified (and thus included on
the manufacturers’ list) to have authority to approve a service center, but this seems a plausible reading. But the issue
is not whether the removal of ADS’s certification impacted Interlock’s rights, only whether Interlock’s continued
omission from ADS’s entry on the list does.
2
  Counsel suggested at oral argument that Interlock’s ability to seek approval as a service center for a different
manufacturer may be impacted by its removal as ADS’s service center, but the complaint contains no such allegations.
The complaint does contain some conclusory statements that Interlock has a legal right to be included in the list and
that it was harmed by its removal, including that “[Interlock] held a property interest in their certification and inclusion
in the list. Staying on the list and remaining in good standing with the Department was imperative to [Interlock’s]

                                                            20
No. 19-1229, Michigan Interlock, LLC v. Alcohol Detection Sys., LLC


          Accordingly, I agree that only ADS can provide relief for Interlock’s alleged injury—its

ongoing inability to conduct business as ADS’s BAIID service provider in Michigan. Interlock’s

alleged injury is simply not redressable by the relief it seeks from Secretary Johnson. I therefore

concur.




profitability and its very existence,” R. 9 at PageID 210 ¶ 33; “Plaintiffs had a property interest in . . . their certification
and inclusion on the approved list of vendors,” id. at PageID 268–69 ¶ 257; “[t]he State Defendant’s actions in . . .
removing Plaintiffs from its list of approved BAIID vendors . . . crippled Plaintiffs’ business,” id. at PageID 269 ¶ 259.
But these assertions are not supported by any specific factual allegations and are not sufficient to confer standing.

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