Piazza's Seafood World, LLC v. Odom

Filing 118

RULING denying 71 Motion for Partial Summary Judgment. Signed by Judge James J. Brady on 11/30/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PIAZZA’S SEAFOOD WORLD, LLC
CIVIL ACTION
VERSUS
NO. 07-413-JJB
BOB ODOM, COMMISSIONER OF
AGRICULTURE FOR THE STATE
OF LOUISIANA
RULING ON MOTION
This matter is before the court on a motion (doc. 71) by plaintiff, Piazza
Seafood World, LLC, for partial summary judgment dismissing defendant Bob
Odom’s affirmative defense of qualified immunity.

The motion is opposed;

numerous briefs have been filed. There is no need for oral argument.
Background
Plaintiff Piazza Seafood is a company that imports seafood from China and
Vietnam and distributes its products in Louisiana. Defendant Bob Odom, acting as
Commissioner of Agriculture and Forestry for the State of Louisiana,1 seized large
quantities of seafood from Piazza Seafood pursuant to a regulation promulgated
and enforced by his department. The regulation at issue is La. Admin. Code
7:XXXV.511 (“the Regulation”), which gave the Department authority to seize and
inspect fish imported from Vietnam and China for the presence of fluoroquinolones.
Piazza Seafood filed this action challenging the regulation on the basis that
1

The current Commissioner is Dr. Mike Strain.

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it facially discriminates against foreign commere and violates the Commerce
Clause. Plaintiff additionally claimed that Odom acted outside the scope of his
authority under state law in promulgating the regulation. In June of 2007, this court
certified the state law issue to the Louisiana courts under the Pullman doctrine.2
The state district court then heard the matter and ruled that Odom had no authority
under the Louisiana Constitution or statutes to promulgate the Regulation. On
appeal, the state appellate court affirmed and the decision is now final.3
Thereafter, the case was reopened in this court; discovery was conducted;
and the instant motion for partial summary judgment was submitted on briefs.
Defense of Qualified Immunity– Generally
Under Fifth Circuit jurisprudence, qualified immunity is “a shield from civil
liability for ‘all but the plainly incompetent or those who knowingly violate the law.’”
Beltran v. City of El Paso, 367 F.3d 299, 308 (5th Cir. 2004).4 The Supreme Court
has established a two-prong test to ascertain the viability of a government official's
assertion of qualified immunity. Goodson v. City of Corpus Christi, 202 F.3d 730,

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Railroad Commission v. Pullman Co., 312 U.S. 496 (1941).

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The state appellate court affirmed the trial court’s preliminary injunction ruling,
finding that defendant did not have the authority to regulate the content of imported seafood
under Louisiana law. Piazza's Seafood World, LLC, v. Odom, 6 So.3d 820 (La. App. 1 Cir.
2008). Thereafter, on a motion for permanent declaratory and injunctive relief, the district
judge re-affirmed his findings. No appeal has been taken from that judgment.
4

Citing Jones v. City of Jackson, 203 F.3d 875, 883 (5th Cir.2000) (quoting

Malley v. Briggs, 475 U.S. 335, 341).
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736 (5th Cir. 2000); Siegert v. Gilley, 500 U.S. 226 (1991). First, the court must
examine whether the “plaintiff has alleged a violation of a clearly established right.”
Goodson, at 736. Second, the court must examine whether the defendant’s conduct
was objectively reasonable in light of “clearly established” law at the time of the
alleged violation. Id. The question of objective reasonableness may be resolved on
summary judgment, “[o]bjective reasonableness is a matter of law for the courts to
decide.” Id.5
Qualified Immunity– Scope of Discretionary Authority
More specifically, as it relates to the motion at hand, the question is whether
Odom, in issuing and enforcing the Regulation, was acting within the scope of his
“discretionary authority.” An official claiming qualified immunity must show that “the
conduct in question occurred while he was acting ‘in his official capacity and within
the scope of his discretionary authority.’” Cronen v. Texas Dept. of Human Services,
977 F.2d 934, 939 (5th Cir. 1992).6
Arguments of the Parties
Plaintiff contends that the state court’s finding that Odom acted ultra vires is
the equivalent of finding that he was not acting within his discretionary authority for
purposes of qualified immunity. Additionally, plaintiff contends that the state court’s

5

Quoting Williams v. Bramer, 180 F.3d 699, 702 (5th Cir.1999).

6

Quoting Garris v. Rowland, 678 F.2d 1264, 1271 (5th Cir. 1982).

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finding is not subject to reconsideration under basic principles of full faith and credit,
citing San Remo Hotel, L.P. v. City and County of San Francisco, California, 545 US
323 (2005). In response, defendant argues that he acted in good faith as he
believed that he had the authority to pass the emergency regulations to protect the
public. Odom further argues that a reasonable official would not have known that
he was acting beyond the scope of his authority.
Discussion
The court agrees with plaintiff that the state court’s holding that Odom acted
beyond his authority in promulgating and enforcing the regulation is determinative
of issue that Odom exceeded his authority under state law. The court further agrees
with plaintiff that Odom’s subjective beliefs are not at issue here. See Thompson
v. Upshur County, Texas, 245 F.3d 447 (5th Cir. 2001).
What is at issue, and what plaintiff fails to squarely recognize, is that Odom
additionally argues that a reasonable official in his position would not have known
that he was acting beyond the scope of his authority. The full faith and credit clause
is not implicated because this is a different issue from what was presented and
decided in state court.
The Fourth Circuit7 examined this particular aspect of qualified immunity in
depth in its decision in In re Allen, 106 F.3d 582 (4th Cir. 1997). In that case, the

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While the Fifth Circuit cases cited by the parties do not go into as much depth,
they appear to be consistent with the Fourth Circuit’s decision.

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Fourth Circuit held that a public official may claim qualified immunity “as long as his
actions are not clearly established to be beyond the boundaries of his discretionary
authority.” Id. at 593. “This test is objective, and examines what a reasonable
official in the defendant’s position would have understood the limits of his statutory
authority to be.” Id. This test is more than just whether the official acted unlawfully–
if that were the relevant inquiry “any illegal action would, by definition, fall outside
the scope of an official’s authority.” Id. at 594. The salient issue is not whether
Odom exceeded his authority (as found by the state court); but whether Odom’s
actions in promulgating and enforcing the regulation were clearly established to be
beyond the scope of his authority.8
Were Odom’s Actions Clearly Beyond the Scope of his Authority?
Defendant makes the following arguments (which the court summarizes) in
support of his argument that a reasonable official would have believed that he was
acting within the scope of his discretionary authority:
•

At all relevant times, general constitutional and statutory
provided the Commissioner the authority to “exercise all
functions of the state relating to the promotion, protection, and

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The Fifth Circuit employed this same reasoning in Cronen at 939. Otherwise,
“[t]he ‘good faith’ prong would disappear from the analysis, and an official who acted
wrongly would rarely be entitled to immunity.” Id. The court further stated, “That result
would conflict with the purpose of qualified immunity—allowing officials to exercise
discretion without fear of liability when they make mistakes.” Id.

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•

•

•

•
•

•

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advancement of agriculture . . .”9 and “direct the department, and
except as otherwise provided by law... adopt all necessary rules
and regulations for the purpose of implementing the laws relating
to agriculture.”10
In 2002, the Louisiana Senate passed Concurrent Resolution
No. 13 directing the Commissioner of Agriculture to promulgate
rules and regulations necessary to ensure that all shrimp and
crawfish meet U.S. Food and Drug Administration (FDA)
standards regarding chloramephenicol prior to sale in Louisiana.
SCR No. 13, Reg. Sess. 2002. The resolution encouraged
intergovernmental endeavors by the Commissioner, the LDAF
and the Louisiana Department of Health and Hospitals (DHH) to
carry out the purpose of the resolution.11
Beginning in 2002, the LDAF enacted emergency rules and
began inspecting shrimp, crawfish and crabmeat to ensure it
was free of chloramphenicol. (Doc. 79-2, Afft. Marvin
Montgomery).
Beginning in 2005, the LDAF started promulgating emergency
rules regarding fluoroquinolones in seafood, with the final
amendment being promulgated in November of 2007. Id.
All of these rules were promulgated by the Commissioner upon
the advice of LDAF’s legal counsel. Id.
On May 4, 2007, Odom issued stop orders seizing catfish that
plaintiff had imported from China; 25,000 pounds tested positive
for fluoroquinolones.
On May 23, 2007, the DHH and the LDAF entered into a
Cooperative Endeavor Agreement to work together in combating
the risk to the public of seafood adulterated with
fluoroquinolones. Id. at 5. The Agreement “merely confirmed
the reality of . . . what the two agencies believed and had a
history and custom of doing to protect the public.” Doc.

La. Const. art. III § 10.
La. R.S. 3:3.

11

Defendant argues that the Louisiana Legislature appropriated money to the LDAF
for the express purposes of funding the “inspection of . . . fish and fish products.” See 2006
La. Acts 17; 2007 La. Acts 18. Plaintiff argues the appropriated monies are for a

federally funded seafood inspection program unconnected with the instant
regulations. The court fails to find that this adds much to the equation in any event.
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•
•

79–2 (Afft. Glenn Cambre).
On June 12, 2007, plaintiff filed this lawsuit– the first suit to
challenge LDAF regulations regarding testing for antibiotics.12
In 2007, the House passed Concurrent Resolution No. 197,
urging the Commissioner to ensure that all food, including
aquatic products, sold in Louisiana meet FDA standards on
chloramphenicol and fluoroquinolone. The resolution notes, with
apparent approval, that the Commissioner had already
implemented regulations governing the testing of aquatic
products for the presence of chloramphenicol and
fluoroquinolone. It also states that “the exercise of this police
power in regard to adulterated food and other products ingested
by the people of this state has been vested in the Department of
Agriculture and Forestry and the Department of Health and
Hospitals.” HCR No. 197, Reg. Sess. 2007.13

In opposition, plaintiff makes several points worthy of note. First, there is no
constitutional or statutory authority specifically authorizing the Commissioner to
promulgate regulations concerning the content of seafood for purposes of protecting
public health and safety. Second, under the Louisiana Revised Statutes, the state

12

Plaintiff additionally relies on the decision in Piazza’s Seafood World, LLC v.
Odom, 448 F.3d 744, 747 (5th Cir. 2006) as establishing that the Commissioner cannot
seize seafood in manner discriminatory to foreign commerce. That case clearly
established that regulations on seafood that discriminate against foreign commerce are
subject to strict scrutiny. However, when this court invoked the Pullman doctrine, it did so
precisely to “avoid” determination of the commerce clause argument raised by plaintiff.
Odom’s liability stems from his exceeding his authority under state law. In short, the
question is not whether a reasonable official would have known he was violating the
Commerce Clause, but rather whether a reasonable official would have known that he was
exceeding the scope of his discretionary authority under state law in promulgating
regulations regarding testing of seafood for antibiotics. Consequently, the fact that this
lawsuit was the first to challenge the actions at issue is clearly a point in favor of finding
qualified immunity.
13

Odom additionally points to the fact that, in July of 2004, the legislature
specifically extended the Commissioner’s powers of regulation to “aquaculture”– the raising
and marketing of aquatic livestock in private ponds. La. R.S. 3:559.2(A).

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health officer and the LDHH are given “exclusive jurisdiction” over the sanitary
inspection of meat, milk, and other food products “which may affect public health
and safety.” La. R.S. 40:5 (15). Third, while governmental entities may enter into
cooperative endeavors in some instances, the agreement

was signed after

defendant acted in this case. Fourth, resolutions are not acts of the legislature.
Having carefully considered the arguments of the parties and the supporting
evidence,14 the court concludes that the historic facts underlying the determination
of the reasonableness issue are not in dispute; and, the question of objective
reasonableness is consequently a matter for the court. Bramer at 703.
Furthermore, the court finds that, while there was no specific legislative
authority authorizing the Regulation, Odom’s actions were objectively reasonable
under the clearly established law at that time. The state statutes vested the
authority to inspect food products and to regulate the content of food for health
purposes with the LDHH. Historically, however, there had been a practice of the
LDHH partnering with the LDAF to test and monitor products for the presence of
chloramphenicol. See, SCR No. 13, Reg. Sess. 2002; Afft. of Glenn Cambre; Afft.
Marvin Montgomery. An official in Odom’s position would have reasonably believed
that he could regulate the content of seafood for public health purposes as part of
a cooperative endeavor with the LDHH. Id. Members of the legislature and LDAF’s
legal counsel all apparently thought that Odom was empowered to act in this area,
14

It is well established that the court has no duty to search the record.

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as well.
Accordingly, the motion for partial summary judgment (doc. 71) by plaintiff is
hereby DENIED as the court rules that Odom is entitled to qualifies immunity as
provided herein.
Baton Rouge, Louisiana, November 30, 2011.

JAMES J. BRADY, JUDGE
MIDDLE DISTRICT OF LOUISIANA

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