1The Honorable Catherine D. Perry, United States District Judge for the Eastern

District of Missouri.

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
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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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
3There 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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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
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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
4The 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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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 freefloating 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
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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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.
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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
6There is no dispute that Officer Singleton has not been deprived of either life

or property.

-9-

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
7An 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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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
8The 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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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
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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.

InRoth, 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
9Although 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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 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
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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. SeeCleveland 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
10Because 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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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
11If 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.

12The 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 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
13Officer 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. 

-17-

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. 
-18-

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
-19-

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 dueprocess 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
-20-

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
-21-

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
-22-

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 shortorder 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. 
-23-

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 substantivedue-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.
-24-

This Court has made the same point several times. In the zoning context, for

example, we have distinguished between what might be called ordinary administrativelaw 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
-25-

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.