David C. Singleton v. Don Cecil , 176 F.3d 419 ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1726
___________
David C. Singleton, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Don Cecil, Individually and in his *
official capacity as Chief of Police; *
Harley Moyer; Ivan Parker; Kevin *
Tidwell; Della Price; City of Advance, *
*
Appellees. *
___________
Submitted: January 11, 1999
Filed: April 27, 1999
___________
Before BOWMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, FAGG,
WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD
ARNOLD, and MURPHY, Circuit Judges, En Banc.
___________
MAGILL, Circuit Judge.
Following the analysis of our sister circuits and Supreme Court precedent, we
affirm the district court's1 holding that, in Missouri, an at-will employment state, a
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
discharged municipal at-will employee does not have a section 1983 substantive due
process occupational liberty interest under the Fourteenth Amendment.
I.
A. Facts
David Singleton worked for the City of Advance, Missouri as a police officer
from 1990 until his termination in 1994. The City of Advance did not have a written
employment agreement with Officer Singleton. Officer Singleton's employment was
terminable at will, either by the mayor with approval of a simple majority of the city
council, or by a two-thirds vote of the city council. See Mo. Ann. Stat. § 79.240
(1998); State ex rel. Lupo v. City of Wentzville, 886 S.W.2d 727, 730-31 (Mo. Ct.
App. 1994). Neither state nor local law limited the reasons for which Officer
Singleton could be discharged nor afforded him the right to a hearing in connection
with his discharge. At the time of Officer Singleton's discharge, defendant Don Cecil
was Advance's police chief, and defendants Harley Moyer, Ivan Parker, Kevin
Tidwell, and Della Price were members of Advance's city council. William
Bradshaw, the mayor of Advance, was not a named defendant.
During the period of his employment, Officer Singleton became concerned that
Chief Cecil had abused an incentive program designed to facilitate government
purchases by purchasing a car for his own benefit and use under the program.2 Despite
his belief that Chief Cecil had engaged in illegal activity, Officer Singleton never
notified any law enforcement officials, the mayor, or the city council of his concern.
On the morning of March 8, 1994, Officer Singleton's wife, Joann, called their
2
In fact, Mayor Bradshaw and the city council members had prior knowledge
of the vehicle purchase and considered the car available for use by the city as a
backup police vehicle.
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daughter, Sabrina, on a cordless telephone. During the conversation, they began
discussing Chief Cecil, and Joann said she wanted to "set up" Chief Cecil by hiring
someone to bribe him. Unbeknownst to Joann and Sabrina, this statement was
recorded by David George, a local private investigator who happened to be scanning
radio frequencies at the time.3 Later that day, George contacted Chief Cecil and Mayor
Bradshaw and played the recorded conversation for them. George also gave Chief
Cecil a copy of the recording. Chief Cecil then visited the members of the city council
and played the recording for them individually. Each council member recognized
Joann's and Sabrina's voices on the recording and, at a special meeting on March 11,
1994, they unanimously voted to terminate Officer Singleton's employment. They did
not include a reason for discharging Officer Singleton in his termination letter. Nor
did they publicly divulge any reason for the discharge.
Officer Singleton then initiated this suit under 42 U.S.C. § 1983 against Chief
Cecil, the four council members, and the City of Advance. He alleged that his
termination by the defendants violated his rights of free speech, due process, intimate
association, and privacy. His free speech allegation rested on the premise that he was
discharged in an effort to keep him silent concerning Chief Cecil's car purchase. In
response, the council members divulged that they based the termination decision solely
on Joann's plot to bribe Chief Cecil. The district court granted summary judgment in
favor of the defendants on all of Officer Singleton's claims. Particularly, the district
court concluded that Officer Singleton could not prevail on his free speech claim
because he could not demonstrate any causal connection between Chief Cecil's car
purchase and his termination. See Singleton v. Cecil, 955 F. Supp. 1164, 1166-67
(E.D. Mo. 1997). The district court also found that Officer Singleton could not prevail
3
There is no contention on appeal that this interception was illegal or that
George was targeting conversations between Joann and Sabrina. George testified that
throughout March 1994, he monitored cordless phone channels in the City of
Advance with his radio scanner "more or less" for entertainment purposes. Appellee's
App. at 228.
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on any procedural due process claims because, as an at-will employee, he had no
liberty or property interest in his job. See id. at 1167. Finally, the district court held
that Officer Singleton's claims that he was deprived of his rights of intimate
association and marital privacy failed because "the defendants had a legitimate, good
faith belief that plaintiff, with his family, was engaging in improper conduct by
conspiring to bribe the Chief of Police." Id.
B. Missouri At-Will Employment Law
Because the "Due Process Clause does not purport to supplant traditional tort
law," Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992) (quotations omitted),
and because property interests protected by the Due Process Clause are not created by
the Constitution, but rather by independent sources such as state law, municipal
ordinance, or contract, see Bishop v. Wood, 426 U.S. 341, 344 & n.7 (1976); Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 577-78 (1972); Movers Warehouse,
Inc. v. City of Little Canada, 71 F.3d 716, 718 & n.3 (8th Cir. 1995), we briefly set
forth the pertinent Missouri law on at-will employment. In this case, neither state law,
municipal law, a collective bargaining agreement, or an employment contract afforded
Officer Singleton any property interest in his job. In contrast, as an at-will employee
in Missouri, he could be discharged "for cause or without cause." Dake v. Tuell, 687
S.W.2d 191, 193 (Mo. 1985). Indeed, he could even be discharged "for no reason or
for an arbitrary or irrational reason." Shawcross v. Pyro Prods., Inc., 916 S.W.2d 342,
343 (Mo. Ct. App. 1995) (quotations omitted).
Notwithstanding the broad grant to employers of the power to fire at-will
employees for any or no reason, Missouri law affords a discharged at-will employee
such as Officer Singleton the ability to seek judicial redress. Such an employee may
assert a cause of action for tortious interference with employment against third-parties,
i.e., non-employers such as George, for inducing the discharge. See Stanfield v.
National Elec. Contractors Ass'n, Inc., 588 S.W.2d 199, 202 (Mo. Ct. App. 1979); see
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also Haddle v. Garrison, 119 S. Ct. 489, 492 (1998) (explaining that "third-party
interference with at-will employment relationships . . . has long been a compensable
injury under tort law"). He also may bring a tortious interference claim against his
direct supervisor and employer if he presents "evidence eliminating any business
justification at all for the termination." Eggleston v. Phillips, 838 S.W.2d 80, 83 (Mo.
Ct. App. 1992). In addition, and despite the typical prohibition against bringing
wrongful discharge claims, such an employee may allege that his discharge violated
Missouri public policy. See Shawcross, 916 S.W.2d at 343. Officer Singleton has not
attempted to assert any state law claims in this case.
II.
On appeal, a divided panel of this court originally affirmed the district court in
all respects. See Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir.), vacated, 133 F.3d
631, 636 (8th Cir. 1998) (Singleton I). After granting Officer Singleton's petition for
rehearing, the panel, with one judge dissenting, affirmed most of the district court's
grant of summary judgment, but reversed on the sole ground that it believed the
defendants deprived Officer Singleton of his occupational liberty, which was
ostensibly protected by substantive due process. See Singleton v. Cecil, 155 F.3d 983,
986-90 (8th Cir.), vacated, 155 F.3d 983, 992 (8th Cir. 1998) (Singleton II).
In the course of reversing the district court, the panel majority conceded that
Officer Singleton was not deprived of any life, liberty, or property interest that would
support a procedural due process claim. See id. at 987, 989. Under Eighth Circuit law,
this concession should have precluded Officer Singleton from proceeding on a
substantive due process theory. See Weimer v. Amen, 870 F.2d 1400, 1405-06 (8th
Cir. 1989) ("to the extent our cases recognize a constitutional right to substantive due
process, that right is no greater than the right to procedural due process"); Buhr v.
Buffalo Pub. Sch. Dist. No. 38, 509 F.2d 1196, 1202 (8th Cir. 1974); accord Clark v.
Whiting, 607 F.2d 634, 641-42 n.17 (4th Cir. 1979) (absence of a liberty or property
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interest in connection with a procedural due process claim is fatal to the plaintiff's
purported substantive due process claim); Weathers v. West Yuma County Sch. Dist.
R-J-1, 530 F.2d 1335, 1340-42 (10th Cir. 1976) (same); Jeffries v. Turkey Run Consol.
Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974) (Stevens, J.) (same).
Nevertheless, the panel majority elected not to follow this authority.
Acknowledging that "the Fourteenth Amendment does not create any generalized free-
floating right against depriving someone of 'due process' in the abstract," Singleton II,
155 F.3d at 987, the panel majority held that Officer Singleton had a general
"occupational liberty"--referred to as "the right 'to engage in any of the common
occupations of life'"--that was entitled to substantive due process protection. Id.
(quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). The panel majority then held
that Officer Singleton had been deprived of his occupational liberty on two different
bases: (1) by speculating that if the reason for discharging him became known then it
might be difficult for him to secure employment as a police officer elsewhere, and (2)
by holding that this occupational liberty conferred upon him the right to retain his
particular job with the City of Advance. See id. at 988. Relying on cases such as
Kelley v. Johnson, 425 U.S. 238, 248 (1976) and Lowman v. Davies, 704 F.2d 1044,
1046 (8th Cir. 1983), the panel majority also held that "if a government employer's
decision or policy is so irrational that it may be branded arbitrary, an employee may
plausibly assert that he has been denied his substantive due process rights under the
Fourteenth Amendment." Singleton II, 155 F.3d at 986 (quotations omitted).
According to the panel majority, the defendants deprived Officer Singleton of his
occupational liberty by discharging him because of Joann's plot, and the notion of
substantive due process absolutely barred the defendants from discharging Officer
Singleton for this supposedly arbitrary or irrational reason.4
4
The panel majority also concluded that the defendants' decision to discharge
Officer Singleton was arbitrary and irrational. See Singleton II, 155 F.3d at 987.
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At this time, we pause to note that neither Kelley nor Lowman involved an
employee's occupational liberty in an at-will employment state, although both were
decided under the rubric of substantive due process. Both of these cases dealt with the
constitutionality of governmental regulations addressing the appearance--specifically
the hair length--of governmental employees and the employees' assertions that these
regulations violated "some sort of 'liberty' interest within the Fourteenth Amendment
in matters of personal appearance." Kelley, 425 U.S. at 244; see also Lowman, 704
F.2d at 1045 (case involved an employee's alleged "freedom to govern one's personal
appearance" (quotations omitted)). The Supreme Court even questioned whether any
such liberty was protected by substantive due process, but was willing to assume so for
purposes of the appeal. See Kelley, 425 U.S. at 244.5
III.
Officer Singleton initially challenges the district court's conclusion that the
defendants did not violate his substantive due process right of privacy in his marital
relationship and his First Amendment right of intimate association. With respect to
these challenges, we affirm the district court for the reasons expressed in the first panel
opinion. See Singleton I, 133 F.3d at 634-35; see also Singleton II, 155 F.3d at 986.
5
In the only Eighth Circuit case concluding that a public employee has a
substantive due process right to be free from arbitrary and capricious discharge, see
Moore v. Warwick Pub. Sch. Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986), the
employee had an undisputed property right in his continued employment. See id. at
326 (employee discharged during term of contractual employment). The Moore panel
neither addressed nor considered any claim that an employee's "occupational liberty"
would afford a substantive due process right to be free from arbitrary and capricious
discharge.
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IV.
We hold that the defendants' alleged arbitrary and capricious firing of Officer
Singleton, an at-will employee under Missouri law who could be discharged "for cause
or without cause," Dake, 687 S.W.2d at 193, or "for no reason or for an arbitrary or
irrational reason," Shawcross, 916 S.W.2d at 343 (quotations omitted), because of the
conversation between his wife and daughter did not violate his substantive due process
rights. To hold otherwise would be to disregard Supreme Court precedent and the
decisions of our sister circuits, which hold that an employee's occupational liberty is
not protected by substantive due process when the employee is discharged by a
governmental employer. We would also be abusing § 1983 to intrude upon and
second-guess at-will employment decisions made by state actors, notwithstanding the
Supreme Court's admonishment that "[t]he federal court is not the appropriate forum
in which to review the multitude of personnel decisions that are made daily by public
agencies" and "[t]he United States Constitution cannot feasibly be construed to require
federal judicial review for every such error." Bishop, 426 U.S. at 349-50 (footnote
omitted). Furthermore, we would be distorting the Constitution to supplant Missouri
state law and create a federal tort regulating state employment decisions. Cf. Collins,
503 U.S. at 128 (explaining that "state law, rather than the Federal Constitution,
generally governs the substance of the employment relationship" and the "Due Process
Clause does not purport to supplant traditional tort law in laying down rules of conduct
to regulate liability for injuries that attend living together in society" (quotations
omitted)).
The Due Process Clause of the Fourteenth Amendment prohibits state
governments from depriving "any person of life, liberty, or property, without due
process of law . . . ." U.S. Const. amend. XIV, § 1. This clause has two components:
the procedural due process and the substantive due process components. See County
of Sacramento v. Lewis, 118 S. Ct. 1708, 1713 (1998). "Analysis of either a
procedural or substantive due process claim must begin with an examination of the
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interest allegedly violated," Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442,
445-46 (8th Cir. 1995), and "[t]he possession of a protected life, liberty, or property
interest is . . . a condition precedent" to any due process claim. Movers Warehouse,
71 F.3d at 718; see also Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.
1998) ("a plaintiff must, as a threshold matter, show a government deprivation of life,
liberty, or property"). "[W]here no such interest exists, there can be no due process
violation." Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), cert. denied,
118 S. Ct. 1188 (1998). Merely labeling a governmental action as arbitrary and
capricious, in the absence of the deprivation of life, liberty, or property, will not
support a substantive due process claim. See Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 226 (1985) ("the Court has no license to invalidate legislation which it thinks
merely arbitrary or unreasonable" (quotations omitted)); see also Nunez, 147 F.3d at
873 ("There is no general liberty interest in being free from capricious government
action."); Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1233 (6th
Cir. 1997) (Ryan, J., concurring) ("merely to state that the Due Process Clause was
'intended to secure the individual from the arbitrary exercise of the powers of
government' . . . does nothing to state a claim under the substantive component of the
Due Process Clause"); Jeffries, 492 F.2d at 4 n.8 (Stevens, J.) (no general liberty
interest in being free from arbitrary and capricious governmental action). "Thus, in the
absence of a life, liberty or property interest [Officer Singleton] could be terminated
for arbitrary and capricious reasons." Zorzi v. County of Putnam, 30 F.3d 885, 895
(7th Cir. 1994).
The only question here is whether Officer Singleton has been deprived of a
"liberty" protected by substantive due process.6 The substantive component of "the
Due Process Clause specially protects those fundamental rights and liberties which are,
objectively, 'deeply rooted in this Nation's history and tradition,' and 'implicit in the
6
There is no dispute that Officer Singleton has not been deprived of either life
or property.
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concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were
sacrificed.'" Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997) (citations
omitted).7 Justice Powell articulated that "substantive due process rights are created
only by the Constitution," unlike procedural due process rights which can be created
by either state law or the Constitution. Ewing, 474 U.S. at 229 (Powell, J.,
concurring). For this reason, "[t]he protections of substantive due process have for the
most part been accorded to matters relating to marriage, family, procreation, and the
right to bodily integrity." Albright v. Oliver, 510 U.S. 266, 272 (1994).
Officer Singleton suggests that the defendants, by discharging him from
employment, have deprived him of his occupational liberty, which supposedly confers
upon him the right to continued employment as a police officer with the City of
Advance absent some nonarbitrary and rational reason for his discharge. Notably, this
is not a situation where the government, as regulator, has somehow used its regulatory
authority to deny a person the opportunity to pursue a chosen profession. Compare
Roth, 408 U.S. at 575 (noting that "on the record before us, all that clearly appears is
that the respondent was not rehired for one year at one university"), with Schware v.
Board of Bar Exam'rs, 353 U.S. 232, 246-47 (1957) (government refused to license
plaintiff as a lawyer, thus preventing plaintiff from working as a lawyer anywhere in the
state). Rather, this case involves a governmental employer's decision to discharge an
7
An alternative way to bring a substantive due process claim is to assert that the
government's actions "either 'shock[] the conscience' or 'offend[] judicial notions of
fairness . . . or . . . human dignity.'" Riley v. St. Louis County, 153 F.3d 627, 631 (8th
Cir. 1998) (citations omitted), cert. denied, 119 S. Ct. 1113 (1999). In such a case,
the plaintiff's "burden is to establish that the government action complained of is
'truly irrational,' that is, 'something more than . . . arbitrary, capricious, or in violation
of state law.'" Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc)
(quotations and citations omitted). Singleton has not, however, sought to prevail
under this "shocks the conscience" theory, instead relying solely on the supposed
existence and deprivation of his "fundamental" occupational liberty interest.
Accordingly, we need not address the applicability of this theory to the facts of the
present case.
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at-will employee. Thus, we are dealing with the government acting "as [a] proprietor"
that was managing "its own internal affairs" rather than as a "lawmaker" that was
attempting "to regulate or license . . . an entire trade or profession, or to control an
entire branch of private business." Cafeteria & Restaurant Workers Union, Local 473
v. McElroy, 367 U.S. 886, 896 (1961). "[I]t is crucial to note the distinction between
'legislative' acts" such as laws and regulations "and 'non-legislative' or 'executive' acts"
such as employment terminations when analyzing substantive due process claims.
McKinney v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994) (en banc).
There is no suggestion that a right to continued employment with a particular
governmental employer has "anything resembling 'the individual's freedom of choice
with respect to certain basic matters of procreation, marriage, and family life.'" Harrah
Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 (1979) (per curiam) (citation omitted).
To the contrary, the Supreme Court has suggested that a public employee's interest in
continued employment with a governmental employer is not so "fundamental" as to be
protected by substantive due process.8 See id. at 195-99. In Harrah, a school board
8
The dissent, quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923), asserts that
we are ignoring the Supreme Court's assertion that "liberty includes the right 'to
engage in any of the common occupations of life . . ..'" Post at 3. The Court recently
explained that this liberty right to engage in an occupation extends to a person's
ability to engage in a "field of private employment." Conn v. Gabbert, 67 U.S.L.W.
4222, 4224 (U.S. 1999) (No. 97-1802). The Court then made clear that this right has
been afforded substantive due process protection only when the government
"complete[ly] prohibit[s]," rather than "brief[ly] interrupt[s]," a person from engaging
in his desired occupational field. Id. Moreover, the Court emphasized that this "right
is simply not infringed by the inevitable interruptions of our daily routine as a result
of legal process which all of us may experience from time to time." Id. Here, Officer
Singleton, an at-will employee, has been discharged by his governmental employer
from one specific job. This is an experience suffered by multitudes of persons, and
there is no evidence that Officer Singleton has been stigmatized by his discharge or
that he has been completely prohibited from working as a police officer in the future.
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voted not to renew a tenured teacher's contract because she refused to comply with the
board's continuing education requirements. See id. at 195-96. The teacher claimed
that she had a liberty interest in not being discharged pursuant to that rule. See id. at
198. While acknowledging that the Due Process Clause "protects substantive aspects
of liberty against impermissible governmental restrictions," id. at 197, the Court
explained that the teacher's professed liberty interest was completely unrelated to "the
individual's freedom of choice with respect to certain basic matters of procreation,
marriage, and family life." Id. at 198 (quotations omitted). In addition to its
conclusion that the board's action was not arbitrary, the Court held that the teacher
"neither asserted nor established . . . the deprivation of any fundamental constitutional
right." Id. at 199.
Although the Court has not otherwise ruled on the applicability of occupational
liberty and substantive due process in the context of a governmental employer's
decision to discharge an employee, the Court's procedural due process decisions
suggest that Officer Singleton's alleged occupational liberty is not protected by
substantive due process. See Roth, 408 U.S. at 572-75; McElroy, 367 U.S. at 895-96.
For example, the Court has explained that "state law, rather than the Federal
Constitution, generally governs the substance of the employment relationship."
Collins, 503 U.S. at 128. The Court has also asserted that "[t]he Due Process Clause
of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised
personnel decisions" and "[t]he United States Constitution cannot feasibly be construed
to require federal judicial review for every" allegedly erroneous decision. Bishop, 426
U.S. at 350. The Court has further exclaimed that "[t]he federal court is not the
appropriate forum in which to review the multitude of personnel decisions that are
made daily by public agencies." Id. at 349.
In Roth, a University president informed a non-tenured teacher that he would not
be rehired for the next academic year but did not give any reason for the decision. See
408 U.S. at 568. While specifically recognizing that the term "liberty" included "the
right . . . to engage in any of the common occupations of life," id. at 572 (quotations
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omitted), the Court went on to hold that the University's decision did not implicate any
liberty interest. See id. at 573. The Court explained that "in declining to re-employ
the [teacher], [the University] imposed on him [no] stigma or other disability that
foreclosed his freedom to take advantage of other employment opportunities." Id.
According to the Court, "[i]t stretches the concept too far to suggest that a person is
deprived of 'liberty' when he [is discharged from] one job but remains as free as before
to seek another." Id. at 575.
In McElroy, the plaintiff was a cook who worked for a private employer on the
premises of a naval base and lost her employment when the naval officer in charge of
the base, without giving any reasons, withdrew her security clearance. See 367 U.S.
at 887-88. When analyzing her claim, the Court explained that it "has consistently
recognized that . . . the interest of a government employee in retaining his job[] can be
summarily denied." Id. at 896. According to the Court, "[i]t has become a settled
principle that government employment, in the absence of legislation, can be revoked
at . . . will." Id.9
In further contrast to any assertion that Officer Singleton's alleged occupational
liberty is so fundamental as to be protected by substantive due process, the Supreme
Court has steadfastly refused to find a violation of the Due Process Clause when a
9
Although the Court also "assume[d] that [the plaintiff] could not
constitutionally have been excluded from [her job] if the announced grounds for her
exclusions had been patently arbitrary or discriminatory," McElroy, 367 U.S. at 898,
the Court made this assumption only in the context of an employee's ability to
demand a procedural due process hearing. Id. The Court made no suggestion that an
employee would be able to rely on "occupational liberty" to assert a substantive due
process claim. Cf. McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en banc)
("Supreme Court precedent demonstrates that an employee with a property right in
employment is protected only by the procedural component of the Due Process
Clause, not its substantive component").
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public employer discharges an employee for no reason, a bad reason, or even a false
reason absent the employer's publication of stigmatizing information about the
employee in connection with the discharge. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 547 n.13 (1985) (summarily rejecting the "argu[ment] that [plaintiff] was
unconstitutionally deprived of liberty because of the accusation of dishonesty that hung
over his head" on the ground that plaintiff's "failure to allege that the reasons for [his]
dismissal were published dooms this claim"); Codd v. Velger, 429 U.S. 624, 628
(1979) (per curiam) ("Since the District Court found that [the Plaintiff] had no
Fourteenth Amendment property interest in continued employment, the adequacy or
even the existence of reasons for failing to rehire him presents no federal constitutional
question. Only if the employer creates and disseminates a false and defamatory
impression about the employee in connection with his termination is [a procedural]
hearing [constitutionally] required." (footnote omitted)); Bishop, 426 U.S. at 348-50
(even if employer's reason for discharging at-will employee was false, employee still
could not state a due process claim). In this case, it is undisputed that the defendants
did not publicize any reason for discharging Officer Singleton until they were
defending themselves in this litigation and there is no evidence in the record that
Officer Singleton has been stigmatized. Regardless, even when the public employer
divulges stigmatizing information about an employee in connection with that
employee's discharge, the Court has only held that the employee's occupational liberty
is afforded procedural due process protection. The Court has neither held nor
intimated that the employee's occupational liberty is entitled to substantive due process
protection.
Based on this Supreme Court case law, several of our sister circuits have refused
to allow discharged public employees to proceed with substantive due process claims
against their former employers, holding that "employment rights are not 'fundamental'
rights created by the Constitution." McKinney, 20 F.3d at 1560; accord Zorzi, 30 F.3d
at 895; Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1351 (6th Cir. 1992); see also
Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989) ("no clearly established
constitutional right to substantive due process protection of continued public
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employment"); cf. Santiago de Castro v. Morales Medina, 943 F.2d 129, 131 (1st Cir.
1991) (plaintiff's alleged "right to pursue her employment free from emotional health
risks resulting from her supervisor's verbal harassment [does not] warrant[] substantive
due process protection under the United States Constitution"). We agree with these
circuits that the so-called "[o]ccupational liberty . . . is not protected by substantive due
process. Rather, any cause of action for the deprivation of occupational liberty [is]
confined to a claim under procedural due process; there is no such cause of action
under substantive due process." Zorzi, 30 F.3d at 895 (citation omitted); see also
McKinney, 20 F.3d at 1560 ("Supreme Court precedent demonstrates than an employee
with a property right in employment is protected only by the procedural component of
the Due Process Clause, not its substantive component."); Roe v. Antle, 964 F. Supp.
1522, 1531-33 (D.N.M. 1997); Reinhart v. City of Maryland Heights, 930 F. Supp.
410, 413 (E.D. Mo. 1996); Rowe v. Board of Educ. of Chattanooga, 938 S.W.2d 351,
353 n.1 (Tenn. 1996).
An at-will public employee's "occupational liberty" should not be utilized as a
vehicle for a federal court to interfere with employment decisions under the rubric of
substantive due process, especially here, where the discharged employee has no right
to procedural due process protection. A contrary conclusion would enable every
discharged at-will public employee who has no heretofore recognized right to
procedural due process to assert a constitutional claim and seek redress in federal
court.10 Indeed, if we were to hold that an employee's occupational liberty is afforded
substantive due process protection in this case, that liberty should also be afforded
10
Because every discharge would necessarily constitute the deprivation of an
at-will employee's occupational liberty, each such employee could assert a viable
substantive due process claim by merely alleging that his discharge was effected for
arbitrary or irrational reasons.
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procedural due process protection.11 Public at-will employees would then have the
right to a hearing in connection with all discharge decisions so that they may ascertain
whether the reasons for discharge were arbitrary or irrational. This directly contradicts,
if not outright vitiates, the Supreme Court's repeated assertions that an employee can
be discharged for no reason, a bad reason, or a false reason without a hearing, and that
an employee has no right to a hearing in the absence of a property right to his job or
unless his employer publicly divulged a stigmatizing reason for the dismissal. This
also essentially abrogates the concept of at-will employment. This would also require
us to formulate, on a case-by-case basis, standards distinguishing bad and false
reasons, for which an at-will public employee can be discharged, from arbitrary or
irrational reasons.12 Indeed, "every time a [governmental employee] [was] affected by
governmental action, he would have a federal right to judicial review." Nunez, 147
F.3d at 874 (quotations omitted). We would be forced to assume a role that we usually
resist--that of a "super-personnel department[] second-guessing the wisdom of . . .
personnel decisions," Hill v. St. Louis Univ., 123 F.3d 1114, 1120 (8th Cir. 1997)
(quotations omitted), notwithstanding the Court's admonishment that "[t]he federal
court is not the appropriate forum in which to review the multitude of personnel
decisions that are made daily by public agencies." Bishop, 426 U.S. at 349.
Even if we were to assume that occupational liberty is sufficiently fundamental
to qualify for substantive due process protection, we cannot accept the proposition that
the defendants deprived Officer Singleton of that liberty. In the context of a
governmental employer's decision to discharge an employee, the Supreme Court, in a
11
If occupational liberty is so fundamental as to be protected by substantive due
process in the context of a public employer's discharge decision, that occupational
liberty would also be protected by procedural due process.
12
The other option would be to allow juries to decide whether an employer's
decision to discharge an at-will employee was arbitrary. However, this would further
eviscerate the concept of at-will employment by allowing each discharged employee
to seek peer review of the decision.
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procedural due process case, has defined the term "occupational liberty" as the
"freedom to take advantage of other employment opportunities." Roth, 408 U.S. at
573. According to the Court, "[i]t stretches the concept too far to suggest that a person
is deprived of 'liberty' when he [is discharged from] one job but remains as free as
before to seek another." Id. at 575. "This same conclusion applies to the discharge of
a public employee whose position is terminable at the will of the employer when there
is no public disclosure of the reasons for the discharge." Bishop, 426 U.S. at 348.
Indeed, "the right to follow a chosen trade or profession" is not constitutionally
deprived when a plaintiff, notwithstanding an adverse employment action, "remain[s]
entirely free to obtain employment" or "to get any other job" in his chosen trade.
McElroy, 367 U.S. at 895-96.
It has been suggested that the defendants imposed a stigma upon Officer
Singleton when they discharged him.13 Certainly, the mere fact that he was discharged,
while it "might make him somewhat less attractive to some other employers[,] would
hardly establish the kind of foreclosure of opportunities amounting to a deprivation of
'liberty.'" Roth, 408 U.S. at 574 n.13. Although the actual reason for Officer
Singleton's discharge could possibly inhibit Officer Singleton's ability to secure
employment in the future as a police officer, this reason was never publicly divulged
until the defendants communicated it to Officer Singleton during this lawsuit. Because
the "communication was made in the course of a judicial proceeding which did not
commence until after [he] had suffered the injury for which he seeks redress, it surely
cannot provide retroactive support for his claim." Bishop, 426 U.S. at 348. Moreover,
there is no evidence in the record to suggest that the reason for Officer Singleton's
discharge has ever been made public outside of these proceedings or that it has
impacted his ability to secure other employment.
13
Officer Singleton has not made this specific contention in connection with his
substantive due process claim and the record is bereft of any evidence of stigma. He
instead seeks to prevail on the bases that (1) he was discharged and (2) the discharge
decision was arbitrary and irrational.
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V.
For the foregoing reasons, we AFFIRM the judgment of the district court.
MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.
I agree with Judge Richard S. Arnold's admirably lucid statement of the
applicable law, which, distilled, is that a person has a constitutional right to be free
from government action that is so arbitrary that it shocks the conscience. For me,
therefore, the question reduces itself to whether Mr. Singleton's treatment in the
circumstances of this case is shocking to the conscience in the constitutional sense.
I conclude that it is not.
It would have been an act of considerable disloyalty on Mr. Singleton's part to
connive in his wife's scheme, or fail to try to dissuade her from it. It would, moreover,
not have been unreasonable to suspect that Mr. Singleton was guilty of one or both of
these acts, and I cannot conclude that it would be irrational to take action against
someone who was reasonably suspected of disloyalty. I stress the point that the proper
inquiry is whether Mr. Singleton's employment could rationally have been terminated,
not whether the defendants could have proved that he was in fact disloyal. If a
reasonable suspicion motivates an act, the act cannot be irrational; and it is not
unreasonable to suppose that a man or a woman knows what his or her spouse is up to.
In fact, the Supreme Court has pointed out that a governmental act similar to the one
complained of here was reasonable because it "precludes evasions by dispensing with
the necessity of judicial inquiry as to collusion between the wrongdoer and the alleged
innocent" party. Van Oster v. Kansas, 272 U.S. 465, 467-68 (1926).
Since terminating Mr. Singleton's employment was not objectively irrational, it
passes constitutional muster. Suppose, though, that the defendants fired Mr. Singleton,
not because they suspected him of collusion on some level, but simply because of what
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his wife did; and suppose that I am wrong in assuming that the constitutional inquiry
is an objective one, that is, one that does not focus on the defendants' actual subjective
motive. I would still not find that the defendants acted illegally. For one thing, firing
Mr. Singleton for his wife's acts rationally serves the legitimate purpose of ensuring
that officers conscientiously monitor and police their spouses' actions. It is rational,
moreover, to fire Mr. Singleton in order to punish his wife and discourage further
unwanted behavior on her part. Finally, it is rational to terminate Mr. Singleton's
employment as a kind of retribution against his wife, even if it did not discourage
further unwanted conduct. Retribution may be out of favor, but it is hardly irrational.
Indeed, whole societies have organized their legal systems around the idea.
One or perhaps all of these motivations may strike many as mean-spirited or
even immoral. Since they are not irrational, however, they are not unconstitutional,
and the present case can serve, as Mr. Justice Thomas put it in a similar case, as "a
reminder that the Federal Constitution does not prohibit everything that is intensely
undesirable." See Bennis v. Michigan, 516 U.S. 442, 454 (1996) (concurring opinion).
I therefore concur in the judgment of the court.
RICHARD S. ARNOLD, Circuit Judge, with whom McMILLIAN and WOLLMAN,
Circuit Judges, join, dissenting.
Officer Singleton did not have a fixed term of employment. He was an at-will
employee. When he was fired, the city did not, until after litigation had commenced,
give any reason for its action. Accordingly, Mr. Singleton had neither a "property
interest" nor a "liberty interest" as those phrases have come to be understood in due-
process jurisprudence. He has no procedural-due-process claim. He is not entitled to
any kind of a hearing with respect to his discharge. The Court today holds that
Mr. Singleton therefore, and automatically, has no substantive-due-process claim, no
matter what reason the city had or gave for firing him. He could be fired for what his
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wife and daughter said to each other. He could be fired because his name starts with
an "S." He could be fired because of the color of his hair. In none of these instances
would the Due Process Clause of the Fourteenth Amendment pose any obstacle.
In my view, this holding is based on a fundamental misunderstanding of the Due
Process Clause as it has been interpreted for over a century by the Supreme Court. I
therefore respectfully dissent. I have already attempted, at some length, to explain my
reasoning, see Singleton v. Cecil, 155 F.3d 983 (8th Cir. 1998) (opinion for the panel);
Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir. 1998) (opinion dissenting from the first
panel decision), and will try not to repeat myself here.
The Due Process Clause declares that no state shall deprive any person of life,
liberty, or property without due process of law. The words sound entirely procedural
and could well have been interpreted that way, but that has not been the course of the
law. The Supreme Court has traditionally recognized two kinds of due-process claims,
substantive and procedural. Procedural-due-process claims are what they sound like
– claims that a plaintiff has been deprived of something without the proper procedure.
The claim is not that the plaintiff has a right to keep the thing in question at all events,
but rather that the state cannot deprive him of it without some sort of hearing, either
before or after the deprivation. The "property interest" and "liberty interest" concepts
were developed in this context, and they make sense. In the case of the employment
relationship, a "property interest" arises out of a contract that provides that I have a
right to keep my job for a certain period of time, at least in the absence of misconduct
or other specified circumstances. The "liberty interest" concept refers to the interest
in my own reputation, and embodies the right not to be stigmatized at the time of
discharge, unless some sort of fair procedure establishes that the stigma is appropriate.
Substantive due process, on the other hand, has nothing to do with procedures,
hearings, contracts of employment for fixed periods, stigmatizing reasons for dismissal,
or any other particularized kind of governmental conduct. The concept is much more
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general. As the Supreme Court has recently explained, a substantive-due-process
violation takes place when governmental power is exercised arbitrarily and
oppressively. City of Sacramento v. Lewis, 118 S. Ct. 1708, 1716 (1998). "[T]he
substantive due process guarantee protects against government power arbitrarily and
oppressively exercised . . .." Ibid. The Court's opinion in Lewis cites cases all the way
back to 1819 to support this interpretation of the meaning of due process. See, e.g.,
Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819): due process is "intended to
secure the individual from the arbitrary exercise of the powers of government,
unrestrained by the established principles of private right and distributive justice." The
concept is a general one. It is not susceptible of detailed formulation. It cuts across all
limiting categories. The core of the idea is not that government can deprive me of the
thing in question only if it follows certain procedures, but rather that government
cannot, for the reasons given, deprive me of the thing in question at all. "Substantive
due process" is certainly controversial, historically and academically, but the idea is
firmly fixed in our jurisprudence.
The doctrine, to be sure, is not wholly disembodied from the words of the
Fourteenth Amendment (or the Fifth, as the case may be). There is no free-floating
right to due process. There is a right, instead, not to be deprived, without whatever
process is due, of "life, liberty, or property." Life and property are not at issue here.
Liberty is. The Court's position is that an at-will employee who is not discharged for
a stigmatizing reason simply has no due-process claim, however arbitrary, egregious,
or oppressive the conduct of his employer may have been.
The Supreme Court's cases are wholly at odds with this conclusion. "Liberty,"
as that term is used for substantive-due-process purposes, has never been a tightly
controlled analytical concept. As the Court said in Bolling v. Sharpe, 347 U.S. 497,
499-500 (1954), "[l]iberty under law extends to the full range of conduct which the
individual is free to pursue, and it cannot be restricted except for a proper governmental
objective." More particularly, liberty includes the right "to engage in any of the
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common occupations of life . . .." Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The
Supreme Court's employment cases make this clear. Cafeteria & Restaurant Workers
Union v. McElroy, 367 U.S. 886 (1961), is a good example. The plaintiff was a short-
order cook who lost her job when her security clearance was withdrawn. She was not
deprived of anything beyond that particular job, but all nine members of the Court were
nevertheless agreed that she was protected, in the substantive sense, from conduct that
was patently arbitrary. Id. at 898. The case was mainly about procedural due process,
and the plaintiff lost her case, but not because the Court thought she had not been
deprived of "liberty." Rather, in the Court's view, plaintiff had received all the process
that was due. The reason given for her discharge, the withdrawal of a security
clearance, was certainly not arbitrary, and, under all the circumstances, the Court felt
that no hearing or other special procedure was necessary.
Another good example is Harrah Independent School District v. Martin, 440 U.S.
194 (1979) (per curiam). This Court today cites Harrah as authority for its own
position, see ante at 11, but, and I say this respectfully, the Court is simply wrong.
Harrah was a case brought by a public-school teacher. She had been discharged for
failure to comply with certain continuing-education requirements. She alleged that the
application of these requirements to her was arbitrary and capricious, in the
constitutional sense. The Supreme Court disagreed, explaining that the reasons given
were not at all arbitrary. Plaintiff asserted both procedural and substantive theories
under the Due Process Clause. Because she was a tenured teacher, and could be
dismissed only for specified reasons, she was entitled to a hearing to determine whether
any such reasons existed, and she had received that hearing. Her procedural claim was
therefore rejected. Her substantive-due-process claim was then treated separately and
also rejected, on the ground that the policy being applied to her was not irrational. The
fact that the plaintiff had "tenure," or a fixed contract of employment, was not
mentioned at all in the course of the substantive-due-process analysis. Instead, the
Court confronted and squarely decided the question whether the discharge had been
arbitrary or irrational.
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If there is any doubt as to my reading of Harrah, it should be dispelled by Judge
Bowman's opinion in Moore v. Warwick Public School District No. 29, 794 F.2d 322
(8th Cir. 1986). Moore was also a case brought by an employee of a school district.
He alleged two things: first, that because he had a one-year contract of employment,
he was entitled to some sort of pre-termination process; and second, as a substantive-
due-process claim, that he had been discharged for arbitrary and capricious reasons.
We held that the latter theory stated a claim under the substantive aspects of the Due
Process Clause. Harrah, we thought, was controlling on the point. When the Supreme
Court formulated a rational-basis standard and reached the merits of Harrah's claim, we
said, "the Court necessarily recognized a substantive due process right to be free from
arbitrary and capricious state action in this particular context." 794 F.2d at 329.
Nothing in our discussion of the substantive-due-process claim indicated that it turned
on the fact that plaintiff had a property interest in his job. That fact was simply
irrelevant.
The Court is concerned, and with good reason, about the breadth of this concept.
If substantive due process is interpreted without a high degree of discretion and
restraint, it will in due course engulf the whole world of the law. For this reason, both
the Supreme Court and this Court have emphasized the necessity of great judicial
restraint. In order to violate the Due Process Clause, governmental action must be more
than merely "arbitrary" in some general or logical sense, more than merely "arbitrary
and capricious" in the commonly accepted administrative-law sense of that phrase. The
action must be "arbitrary in the constitutional sense," Collins v. Harker Heights, 503
U.S. 115, 129 (1992) (emphasis supplied). "[F]or half a century now we have spoken
of the cognizable level of executive abuse of power as that which shocks the
conscience. . . . [T]he substantive component of the Due Process Clause is violated by
executive action only when it 'can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.' " County of Sacramento, supra, 118 S. Ct. at 1717,
quoting Collins, supra, 503 U.S. at 128.
-23-
This Court has made the same point several times. In the zoning context, for
example, we have distinguished between what might be called ordinary administrative-
law allegations that a certain governmental action is arbitrary and capricious, and
decisions that are truly irrational:
[S]ubstantive-due-process claims should be limited to "truly
irrational" governmental actions. An example would be
attempting to apply a zoning ordinance only to persons
whose names begin with a letter in the first half of the
alphabet.
Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992),
quoting Lemke v. Cass County, Nebraska, 846 F.2d 469, 472 (8th Cir. 1987) (en banc)
(Richard S. Arnold, J., concurring, in an opinion joined by half of the ten-member en
banc Court). The solution to what might be called substantive-due-process sprawl is
not to close the door of the courthouse entirely. It is, instead, to be very careful about
the circumstances in which the door is opened.
In an attempt, perhaps, to soften the blow, today's opinion for the Court en banc
tries to draw a distinction between what it sees as two kinds of substantive due process:
the existence of a " 'fundamental' occupational liberty interest," the theory which, the
Court says, plaintiff advances in this case, on the one hand, and the claim that
governmental action shocks the conscience or offends judicial notions of fairness or
human dignity, or, to use another formulation, is truly irrational, on the other hand.
Ante, at 10 n.7. If these are true distinctions, the law appears to be choking on its own
verbal formulations. But, in fact, they are not. They are only ways of restating the
same thing, using slightly different legal formulations. As the Supreme Court observed
in County of Sacramento, in a passage already quoted, an action which is arbitrary, in
the constitutional sense, and which, therefore, violates the Due Process Clause, is
something that shocks the judicial conscience. Arbitrariness and conscience-shocking
are not two different things. The Court implies that if Mr. Singleton had alleged that
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his discharge shocked the judicial conscience, or was truly irrational, he might have a
case, despite the absence of a property or liberty interest. If this is a real distinction, it
can truly be said that the en banc mountain has labored and brought forth a mouse. In
fact, neither the plaintiff nor any of the previous opinions taking his side in this case
have used the term "fundamental occupational liberty interest," nor would it have
mattered if they had. All of these formulations are admittedly imprecise (because there
is no way of being precise about the subject) ways of saying the same thing:
governmental action which inflicts upon the citizen any grievous wrong is
unconstitutional under the Due Process Clause of the Fourteenth Amendment if it is
utterly lacking in rational basis or fundamentally unfair for some other reason.
At no time does the Court today defend the reason given by the city for
Mr. Singleton's discharge. It simply rejects his suit because his job does not fit either
the "property interest" or "liberty interest" categories, concepts which, as I have tried
to show, make sense only with respect to procedural-due-process claims. "[T]he
concepts of liberty and property interests are . . . useful solely in the context of
procedural due process." Meis v. Gunter, 906 F.2d 364, 369 (8th Cir. 1990).
I respectfully dissent.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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