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, Cu rrent 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 appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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 Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 12 ________________ _________________ Before MATHESON , KELLY , and CARSON , Circuit Judges.

________________ _________________ After the New Mexico Department of Co rrections terminated Plaintiff Eric Luchetti’s employment, Mr. Luch etti appealed his discharg e to the New Mexico State Personnel Board (Board). The Board reinstat ed 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 term ination and reinstatement. Mr. Luchetti sued individual employees of the Board u nder 42 U.S.C. § 1983, asserting that the offset against his backpay violated his fr ee speech and equal protection rights. The district court dismissed on gr ounds 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 termina tion in 2016. He successfully appealed his termination to the Board, which reinstated Mr. Luche tti to his former position. The Board also awarded Mr. Luchetti bac kpay. 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 in cludes any [backpay], the appellant shall provide the agency with a sw orn statement of gross earnings, unemployment compensation, and any other earnings, including but not limited to disability benefits re ceived by the appellant since the effective date of the disc iplinary action. The agen cy shall be entitled to offset earnings, unemployment comp ensation and any other earnings received during the period covered by the [backpay] award against the [backpay] due. Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 23 Applying that provision, the Bo ard offset Mr. Luchetti’s b ackpay award by more than $36,000 in disability be nefits and unemployment compensation Mr. Luchetti had received since his termination. In response to the offset, Mr. Luchetti fi led a complaint in st ate district court, naming as defendants the Board, the De partment 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 dist rict court agreed. 2 This appeal followed.
II. DISCUSSION Qualified immunity shields government o fficials from liabil ity where “their conduct does not violate clea rly 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 de fendant asserts qualified immunity, the burden shifts to the plaint iff, who must demonstrate on the facts alleged that (1) the defendant’s actions violated his or he r constitutional or statutory rights, and (2) the right was cl early 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 conced ed the Board and the Department of Corrections were entitled to Eleventh Amendment immunity.
2 The defendants also moved to dismiss th e state claims. Ra ther than dismiss them, the district court remanded the claims to the state district court. The state claims are not at issue in this appeal. Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 34 the two prongs of the qualified-immunity analys is 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 establishe d if “the state of the law at the time of an incident provided fair warning to the defenda nts 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 es tablished, 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 (10t h Cir. 2018) (internal quotation marks omitted). Clearly established law shoul d not be defined “at a high level of generality,” Ashcroft v. al-Kidd , 563 U.S. 731, 742 ( 2011), and should be “particularized” to th e 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 reas onable [official] that his conduct was unlawful in the situation he confronted.” City of Tahlequah v. Bond , 142 S. Ct. 9, 11 (2021) (inter nal quotation marks omitted). A. Equal Protection Claim The district held that even if Mr. Lu chetti had adequately alleged an equal protection violation, he had not demonstrated that clearl y established law gave the Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 45 defendants fair warning that their enfo rcement 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 pr oviding that any disabled employees terminated due to disability had no right to an appeal. Id. at 1252. The corresponding regulation for non-disable d 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 fact or in determining the objective reasonableness of their acti ons—especially given that fo r 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 si ngle 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 applie s to non-disabled employees and disabled employees alike and does not treat disability payments differently from other sources of inco me. 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 imput es to it, but that is insufficient to Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 56 give the defendants fair warning that thei r 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 ar e 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 e xplaining the collateral source rule in calculating damages in a breach of employme nt 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 le gal substance arising from [N ew Mexico] public policy.” Opening Br. at 17 (italics omitted). Even accepting this characteri zation, it is an insufficient basis for asserting a violation of a constitutiona l or federal statutory right under § 1983. New Mexico’s collateral so urce 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 enfo rced Rule 1.7.12.23(B) in retaliation for his appealing his termina tion and testifying before the Board. The district held that even if Mr. Luchetti had adequate ly 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 re taliation claim. B ecause we affirm the district court’s ruling on the clearly established prong, we need not address whether Mr. Luchetti adequately pleaded a constitutional violation. Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 67 not demonstrated that clearl y established law fairly warn ed the defendants that their enforcement of Rule 1.7.12. 23(B) constituted First Amendm ent retaliation. We agree with this holding as well. Mr. Luchetti conceded in his opening br ief that there is no case precisely on point. Opening Br. at 32. In his repl y 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 successf ully sued a county, the c ounty 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 const itutionally protected First Amendment right anytime he or she petitions the g overnment for redress; the petitioning clause of the First Amendment does not pick and choose its causes. The mino r and questionable, along with the mighty and consequential, ar e all embraced.” 497 F.3d at 1156. We fail to see how this general proposition c ould have given the de fendants 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 th at a defendant law enforcement officer caused the district attorney to withdr aw a job offer in retaliati on for the plaintiff’s trial testimony that was critical of law enforcement. Id. at 1200. We held the right to testify truthfully was clearl y established, and the defenda nt therefore was not entitled Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 78 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. Elsewh ere in his brief, however, Mr. Luchetti says the defendants did not retaliate for his te stimony, but rather that “regulatory retaliation . . . was already in place and wa iting 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 retaliati on for testimony in a mu rder case—would not have given the defendants fair warning th at offsetting Mr. Luch etti’s backpay award pursuant to a state regulation consti tutes First Amendment retaliation. 4
Mr. Luchetti also cites two fe deral 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 i nvolves facts that are even remotely similar to th e facts of Mr. Luchetti’s case. A nd even if they were similar, “for the law to be clearly es tablished, there must be a S upreme Court or Tenth Circuit decision on point, or the clearly establishe d 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-establishe d 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 aba ndon the clearly-established prong in cases involving Fi rst Amendment retaliation. Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 89 Finally, Mr. Luchetti urges us to appl y 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 (10t h Cir. 2015) (internal quotation marks omitted). Our more r ecent jurisprudence, however, has observed that the “sliding scale” approach “may ar guably 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 “flagran tly 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 th e “sliding scale” is still the rule in this Circuit, Mr. Luchetti’s allegations do not ri se to a level of egregiousne ss 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 Appellate Case: 21-2109 Document: 010110709373 Date Filed: 07/12/2022 Page: 9