UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ERIC LUCHETTI, 

 Plaintiff - Appellant, 

v. 

THE NEW MEXICO STATE 

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. 

No. 21-2109 

(D.C. No. 1:20-CV-01232-RB-JFR) 

(D. N.M.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 12, 2022

Christopher M. Wolpert 

Clerk of Court

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_________________________________ 

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 CopelinBrown 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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