The Honorable Lawrence L. Piersol, United States District Judge for th e District * of South Dakota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1659WM

_____________ Central Airlines, Inc.; Central Air * Southwest, Inc.; Dewey E. Towner, * doing business as Central Air * Southwest, * * Plaintiffs-Appellees, * * v. * * Appeal from the United States United States of America; Federal * District Court for the Western Aviation Administration; * District of Missouri. * Defendants, * * William D. Stewart; Walter J. * Hutchings; Thomas E. Stuckey; John C. * Curry; Mark G. Camacho; Timothy C. * Titus, * * Defendants-Appellants. *

_____________ Submitted: November 19, 1997

Filed: March 4, 1998

_____________ Before FAGG and HANSEN, Circuit Judges, and PIERSOL, District Judge. *

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FAGG, Circuit Judge.

Dew ey E. Towner owns Central Air Southwest, Inc., a commercial air freigh t carrier that leases its aircraft from Central Airlines, Inc. In 1993, the Federal Aviation Agency (FAA), through its employees William D. Stewart, Walter J. Hutchings , Thomas E. Stuckey, John C. Curry, Mark G. Camacho, and Timothy C. Titus (th e employees), brought civi l penalty actions against Towner, Central Air Southwest, and Central Airlines (collectively the carriers). Based on the employees’ interpretation of FAA regulations, the FAA told the carriers their planes needed additional equipment to fly in known or forecasted icing conditions, and the FAA threatened to fine th e carriers and ground their planes if operations continued. To avoid th e fines, the carriers broke their air freight contracts and installed the specified eq uipment. According to the
carr iers, the FAA later admitted the employees’ “previous interpretation [of th e regulations] was incorrect.” (Pls.’ Am. Compl. ¶ 35.)

Cla iming a loss of nearly eight million dollars, the carriers sued the Unite d States, the FAA, and the employees. Aside from other claims not involved in thi s appeal, the carriers allege the em ployees violated the carriers’ Fifth Amendment equal protecti onand substantive due process rights when the employees initiated the civi l penalty actions “based upon incorrect versions of applicable law.” (Pls.’ Am. Compl. ¶ 65.) Asse rting qualified immunity, the employees filed a Federal Rule of Civi l Procedur e 12(b)(6) motion to dismiss the constitutional claims. The district court denied the employees’ motion, but granted Stewart’s and Stuckey’s motion to dismiss for lack of personal jurisdiction. The f our remaining employees appeal. See Hafley v. Lohma n , 90 F.3d 264, 266 (8th Cir. 1996) (holding denial of motion to dismiss o n qualified immunity grounds is an appealable final order), cert. denied , 117 S. Ct. 1081 (1997).

We review de novo the district court’s denial o f qualified immunity, and like the district court we view as true the asserted and incorporated allegations in the equal-3-

protection and substantive due process counts of the carriers’ complaint. See id. a t 266-6 7. We also construe all reasonable inferences from the allegations favorably to the carriers. See id. Dismissal is inappropriate “unless it appears beyond doubt [the carriers ] can prove no set of facts in support of [their constitutional] claim[s] whic h would entitle [them] to relief.” Id. at 266 (internal quotations omitted). The employees contend they are entitled to qualified immunity because the allegations in the challenged counts are insufficient to state a violation of the carriers' constitutional rights. Se e Merritt v. Reed , 120 F.3d 124, 126-27 (8th Cir. 1997).
We first take up the carriers’ equalprotection claim. Although equal protection claims a re often based on suspect classifications such as race, the Equal Protectio n Clau se also prohibits government officials from selectively applying the law in a discriminatory way. See Snowden v. Hughes , 321 U.S. 1, 8 (1944); Batra v. Board of Regents of Univ. of Neb. , 79 F.3d 717, 721 (8th Cir. 1996). The carriers allege the empl oyees singled them out for enforcement while ignoring other airlines that als o lacked the specified equipment. Unequal application of the regulations in question , however, does not violate equal protection unles s “there is shown to be present in it an element of intentional or purposeful discrimination.” Snowd en , 321 U.S. at 8. In their
com plaint, the carriers claim the employees based their enforcement decision on a n “incorrect ” interpretation of the law and thus the employees “did not follow easil y discoverable FAA precedent.” (Pls.’ Am. Compl. ¶ 3 5.) The carriers tell us what they
mean by the ir allegation of incorrectness in their brief where they make clear thei r constitutional claims are anchored on the “emplo yees[’] [enforcement] of an erroneous interpretatio n

of the [FAA’s] [i]cing [r]egulations.” (Pls.’ Br. at 1.) Even when th e issue of qualified immunity on the carriers’ constitutional claims was submitted below, the distri ct court wanted the carriers’ counsel to explain “the essence of your case, ” stating “[i]n other words, you haven’t alleged a racial or religious or some othe r improper motive ” (emphasis added), and counsel answered “[n]o.” (Hr’g. Tr. at 18- 19.) Al though we find elsewhere in the carriers’ complaint an allegation that th e employees “did not act in good faith” (Pls.’ Am. Compl. ¶ 48), this allegation was-4-

neithe r pleaded nor incorporated in the carriers’ equal protection count (the same i s also true for the substantive due process count), and we cannot read an allegation into the count that is not there. See Bauchman v. West High School , 132 F.3d 542, 55 0 (10th Cir. 1997); Cannon v. University of Chicago , 648 F.2d 1104, 1110 (7th Cir

. 1981 ). Despite “the key requirement [that plaintiff[s] allege and prove unlawful , purposeful discrimination,” Batra , 79 F.3d at 722, and the carriers recognition the y “must allege unlawful, intentional discrimination ” (Pls.’ Br. at 4), nowhere in the equal protec tionclaim do they allege anything more than the employees simply made a mistakendecision--an allegation we must accept as true, see Hafley , 90 F.3d at 266. In stead of pleading the element of intentional or purposeful discrimination, se e Snowden , 321 U.S. at 8, the carriers chose an allegation that is fatal to their equa l protection claim.
Similarly, the carriers base their substantive due process claim on the employees’
e r roneous interpretation of FAA regulations. ( See Pls.’ Am. Compl. ¶¶ 35 & 65; Br. at 1. ) “Assuming this to be true, [the employees mistaken interpretation is] nothin g
more than a misjudgment of law” that falls far short of the arbitrary, capricious an d flagra nt conduct that must be present to establish a substantive due process claim

. Condor Corp. v . City of St. Paul , 912 F.2d 215, 220 (8th Cir. 1990). Although th e carriers were on the receiving end of a bureaucratic blunder, the employees are entitled to qualified immunity on this claim.

We reverse and remand to the district court to dismiss counts III and IV of the carriers’ amended complaint for failure to state constitutional claims for which relie f can be granted.
Piersol, District Judge, dissenting.

I respectf ully disagree with the majority's decision to reverse and remand thi s case to the district court. Under the liberal standards of notice pleading, the carriers-5-

need only give "a s hort and plain statement of the claim showing [they] are entitled to relief," Fed.R.Civ.P. 8(a)(2). See Conley v. Gibson , 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d80 (1957) (all the Rules require is fair notice to defendant of what plaintiff's claim is and grounds upon which it rests); Mangan v. Weinberger , 848 F.2d 909, 911 (8th Cir. 1988), cert. denied , 488 U.S. 1013 (1989).

Inparagraphs 1 through 35 of the Amended Complaint, the carriers set forth a course of conduct undertaken by the FAA emp loyees to enforce selectively against the carriers the FAA icing regulations. The carriers incorporated paragraphs 1 through 35 into Count III, the substantive due process claim, and into Count IV, the equa l protection claim. I do not ag ree that the carriers' isolated reference in paragraph 35 to the FAA employees' "in correct" interpretation of the law requires the legal conclusion that Counts III and IV state essentially no more than negligence claims. Read i n contex t with the preceding material, paragraph 35 conveys the information that th e FAA employees persisted in their selective prosecution of the carriers until June 6 , 19 94, the day an Administrative Law Judge convened a hearing on the FAA's civi l penalty action against the carriers. Only then did the FAA employees finally admit that their interpretation and enforcement of the icing regulations was baseless. Taking as true paragraphs 1 through 35 and the additional allegations in Counts III and IV, as we must do on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), I conclude that the carriers alleged sufficiently tha t the FAA employees acted arbitrarily, capriciously, and flagrantly as required to state a substantive due p rocess claim and that the FAA employees intentionally and purposefull y discriminated against the carriers as required to state an equal protection claim.

The FAA employees are not entitled to qualified immunity. The carriers stat e claims for violations of specific constit utional rights, the majority does not dispute that the law of subs tantive due process and equal protection was clearly established at the time the FAA e mployees acted in 1993, and reasonable officials in the position of the FAA employees would have known that their conduct would violate such rights. See-6-

Waddell v. Forney , 108 F.3d 889, 891 (8th Cir. 1997). Accordingly, I would affirm the distri ctcourt's Order denying the motion to dismiss on the ground of qualifie d immunity.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.