IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31076

FRED J. THOMPSON, 

 Plaintiff - Appellee

v.

HOUSING AUTHORITY OF NEW ORLEANS; ROBERT E. ANDERSON; 

GREGG FORTNER, 

 Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-11856

Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit 

Judges.

PER CURIAM:*

Defendants-Appellants appeal the district court’s judgment exercising 

Pullman abstention over Plaintiff-Appellee’s state law claims. We affirm.

I. Facts & Procedural History

Plaintiff-Appellee Fred Thompson was working as a law enforcement 

officer for Defendant-Appellant Housing Authority of New Orleans (“HANO”)

when the underlying events giving rise to this lawsuit occurred. According to

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2017

Lyle W. Cayce

Clerk

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Thompson, on February 20, 2016, he and his partner, Officer Anthony Lindsey,

went to assist another officer, Edgar Baron, after hearing on the police radio 

that Baron had stopped a pedestrian. When Thompson and Lindsey arrived at 

Baron’s location, they observed a black male handcuffed and seated in the back 

of Baron’s squad car. Thompson observed that the handcuffed male was the 

same person he had seen a short time earlier waiting at a bus stop. Two days 

later, Thompson and Lindsey were approached by Sergeant Harry Stanley who 

told them that one of them would have to “ride,” or patrol, with Baron. 

Thompson stated that he did not want to ride with Baron because he had a 

history of stopping HANO residents and violating their civil rights.1 At that 

point, Stanley called his supervisor, Lieutenant Tyrone Martin, and told him 

that neither Thompson nor Lindsey wanted to patrol with Baron. Martin 

replied, “[t]hey don’t have wants.” 

A short time later, Thompson was ordered to report to HANO’s main 

office where he was instructed to give a written statement regarding his 

conversation with Stanley about riding with Baron and Baron’s earlier 

pedestrian stop. Thompson complied and wrote out the statement. Then on 

February 25, 2016, Thompson received a written reprimand from Martin and 

Defendant-Appellant Robert Anderson pursuant to the HANO Police 

Department’s Code of Conduct for insubordination and “conduct unbecoming 

to a member.” Three days later on February 28, 2016, Thompson received a 

written “Notice of Termination” from Defendant-Appellant Gregg Fortner 

indicating that he could be terminated at any time because his employment 

with HANO was considered “probationary.” The letter further provided that if 

Thompson failed to file a grievance letter within five business days, he would 

 

1 As a retired New Orleans police officer, Thompson claims to have knowledge that 

Baron was pressured into resigning from the New Orleans Police Department due to 

numerous complaints having been filed against him. 

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be terminated effective March 8, 2016. The letter also stated that Thompson 

was on “administrative leave” and that he was to return all HANO property 

previously issued to him. On March 3, 2016, Thompson filed a grievance letter 

as requested and a week later attended a grievance hearing with DefendantsAppellants Anderson and Fortner. Thompson claims that he was refused 

whistleblower status at the grievance hearing, and a few days later, on March 

14, 2016, he received written notification of his immediate termination. 

On May 9, 2016, Thompson filed suit in state court against HANO, 

Anderson, and Fortner, asserting a variety of state and federal law claims. In 

his state court pleadings, Thompson complained that he was denied civil 

service protections guaranteed by the State Department of Civil Service and 

the Police Officer’s Bill of Rights as mandated by Louisiana constitutional and 

statutory law. See La. Const. art. X, § 2; La. R.S. 40:2531, et seq. He also

asserted that he was denied protections guaranteed to whistleblowers under 

Louisiana law. He further alleged the unconstitutionality of Louisiana Revised 

Statutes 40:539(C)(8)(b), which provides that HANO “shall not be considered 

to be an instrumentality of the state for purposes of Article X, Section 1(A) of 

the Constitution of Louisiana,[2] and employees of the authority shall not be 

included in the state civil service.” He also argued that Defendants-Appellants

were liable under 42 U.S.C. §§ 1983, 1985, and 1986. Thompson sought 

 

2 Louisiana Constitution, Article X, Section 1(A) states: 

State Civil Service. The state civil service is established and includes all 

persons holding offices and positions of trust or employment in the employ of 

the state, or any instrumentality thereof, and any joint state and federal 

agency, joint state and parochial agency, or joint state and municipal agency, 

regardless of the source of the funds used to pay for such employment. It shall 

not include members of the state police service as provided in Part IV of this 

Article or persons holding offices and positions of any municipal board of health 

or local governmental subdivision.

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damages, punitive damages, costs, attorney’s fees and judicial interest, 

reinstatement as a HANO police officer, and whistleblower status. He further 

prayed that all HANO police officers be placed under civil service status. 

On June 27, 2016, Defendants-Appellants removed the suit to federal 

district court and a few weeks later, Thompson moved to remand. The district 

court heard oral argument on the remand motion and on September 19, 2016, 

granted the motion in part. In its Order and Reasons, the district court first 

noted that it had original jurisdiction over Thompson’s federal law claims 

under 42 U.S.C. §§ 1983, 1985, and 1986. The district court then determined 

that Thompson’s claim that Louisiana Revised Statutes 40:539(C)(8)(b) was 

unconstitutional under Article X of the Louisiana Constitution was an unclear 

and unsettled issue of Louisiana law. Accordingly, the district court concluded 

that Pullman abstention was appropriate and remanded Thompson’s state law 

claims. The district court retained jurisdiction over, but stayed, Thompson’s 

federal law claims under 42 U.S.C. §§ 1983, 1985, and 1986, pending the 

resolution of the state law claims. This appeal ensued. 

II. Standard of Review

We review for abuse of discretion a district court’s decision to abstain 

from exercising jurisdiction. See Bank One, N.A. v. Boyd, 288 F.3d 181, 183–

84 (5th Cir. 2002). We review its underlying legal conclusions de novo. Id.

III. Discussion

In Railroad Commission of Texas v. Pullman Co., the U.S. Supreme 

Court directed that “federal courts should abstain from decision when difficult 

and unsettled questions of state law must be resolved before a substantial 

federal constitutional question can be decided.” Moore v. Hosemann, 591 F.3d 

741, 745 (5th Cir. 2009) (citation omitted). By abstaining in these types of 

cases, “federal courts will avoid both unnecessary adjudication of federal 

questions and needless friction with state policies.” Id. (internal quotation 

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marks and citation omitted). “[F]or Pullman abstention to be appropriate . . . 

it must involve (1) a federal constitutional challenge to state action and (2) an 

unclear issue of state law that, if resolved, would make it unnecessary for us 

to rule on the federal constitutional question.” Id. (citation omitted). Thus, 

Pullman abstention is generally “appropriate only when there is an issue of 

uncertain state law that is fairly subject to an interpretation [by a state court] 

which will render unnecessary or substantially modify the federal 

constitutional question.” Id. (citation omitted).

Here, Thompson challenges the state constitutionality of the 2013 

Amendment to La. R.S. 40:539 and, in his state court pleadings, brings federal 

law claims for damages pursuant to 42 U.S.C. §§ 1983, 1985, and 1986. As the 

district court observed, there is no question that it has original jurisdiction 

over Thompson’s federal law claims. Additionally, no controlling authority has 

yet determined whether La. R.S. 40:539(C)(8)(b) violates the Louisiana 

Constitution, thus, the district court properly concluded that this state law 

issue is unclear and unsettled. See id. Moreover, resolution of the state 

constitutional question would substantially affect the federal constitutional 

question by determining whether Thompson had any property interest in state 

employment for purposes of the due process analysis.3 

 

3 When Pullman abstention is appropriate, the district court should usually retain 

jurisdiction over the entire case, but stay it pending the resolution of the unclear state-law 

issues. 17A Charles Alan Wright et al., Federal Practice and Procedure § 4243 (West 2017); 

Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650, 655 (5th Cir. 

2002). Here, the district court retained jurisdiction over Thompson’s federal claims but

severed his state-law claims (over which it had supplemental jurisdiction), remanding only 

those claims to state court. Because it is within the district court’s discretion under 28 U.S.C. 

§ 1367(c)(1) to decline to exercise supplemental jurisdiction over a claim if it raises a novel or 

complex issue of state law, we conclude that the district court did not err in severing and 

remanding the plaintiff’s state-law claims. 

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HANO repeatedly points to the statutory language itself as 

unambiguously and clearly stating that HANO is not considered an 

“instrumentality of the state” and that HANO employees are not considered 

part of the state civil service. See La. R.S. 40:539(C)(8)(b). However, the 

inquiry is not whether the statute itself is clear or unambiguous but rather, 

whether the statute conflicts with the Louisiana Constitution. HANO also

advances several cases in support of its argument that the statute is 

constitutional, but the cases it cites pre-date the 2013 Amendment to the 

statute.4 When the district court exercised abstention in September of 2016, 

there was no controlling case law on the constitutionality of the 2013 

Amendment to La. R.S. 40:539, and that has not changed to date. 

For these reasons, we hold that the district court properly exercised 

Pullman abstention in the proceedings below. 

IV. Conclusion

The district court’s judgment is AFFIRMED.

 

4 See McGowan v. U.S. Dep’t of Hous. & Urban Dev., 388 F. App’x 433 (5th Cir. 2010);

Casey v. Livingston Par. Commc’ns Dist., No. 07-30990, 2009 WL 577756 (5th Cir. Mar. 6, 

2009); Slowinski v. Eng. Econ. & Indus. Dev. Dist., 828 So. 2d 520 (La. 2002); Garcia v. Hous. 

Auth. of New Orleans, No. 09–1058, (La. App. 1st Cir. Dec. 23, 2009), 2009 WL 4981281.

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