_____________ No. 94-3764WM

_____________ Lydia Marlene Pace, * * Appellant, * * v. * Appeal from the United States * District Court for the Western Judith K. Moriarty, * District of Missouri. individually and in her * official capacity; James Kolb, * individually and in his * official capacity, * *

Appellees. *

_____________ Submitted: November 16, 1995 Filed: May 10, 1996

_____________ Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circui t Judge, and FAGG, Circuit Judge.

_____________ FAGG, Circuit Judge.

Wh ile Judith K. Moriarty was the Missouri Secretary of State an d James Kolb was her Executive Deputy, Moriarty and Kolb (collectively the officials) terminated Lydia Marlene Pace from a clerical position in the Secr etaryof State's office. At the time of Pace's termination, th e Secret aryof State's office had not adopted any procedures allowin g employees to seek review of termination decisions, and the officials did not give Pace a hearing or notice of the reasons for her termination
. Contending the offici als violated her procedural due process rights, Pace brought t his 42 U.S.C. § 1983 action. Pace sought damages from th e officials in their in dividual capacities, and requested equitable relief. The distr ict court concluded Pace's claim failed as a matter of law an d granted the officials summary judgment. Pace

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appeals. We affirm in part, and reverse and remand in part.
To show she was entitled to due process before termination, Pac e must show she had a property interest in her job, that is, a legitimate claim of entitlement to continued employment. Board of Regents v. Roth , 408 U.S
. 564, 577 (1972); Batra v. Board of Regents , 79 F.3d 717, 720 (8th Cir
. 1996). Pace had a property interest if she could only be fired for good cause, Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538-39 (1985), and Pace contends the officials needed good cause to terminate her under Chapter 36 of the Missouri statutes, see Mo. Rev. Stat. §§ 36.010-36.510 (1994). Section 36.390.5 provides that regular employees of merit agencie s have the right to appeal terminations to the state Personnel Advisory Boar d (PAB), and the PAB sh ould reinstate employees who were not terminated for good cause. Sections 36.390.7 and .8 require nonmerit agencies to adopt the same appeal procedures or "procedures substantially similar to those provided for merit employees." Id. § 36.390.8. Pace asserts the Missouri Secretary of State's office is a nonmerit agency under sections 36.390.7 and .8, and the statutes gave her the right not to be terminated without
cause.
The distr ict court rejected Pace's due process claim on the grounds that the Secretary of State's office was not an agency within the meaning of sections 36.390.7 and .8. On appeal, Pace contends the district court misinterpreted Missouri law, and we agree. After the district court' s decision, the Missouri Court of Appeals ruled sections 36.390.7 and . 8 apply to the Secretary of State's office. Laws v. Secretary of State , 895 S.W.2d 43, 48 (Mo. Ct. App. 1995). Nevertheless , the officials urge us to affirm the district court's judgment on alternate grounds, and we ma y affirm on any basis supported by the record. White v. Moulder , 30 F.3d 80 , 82 (8th Cir. 1994), cert. denied , 115 S. Ct. 738 (1995).
The officials argue that even if sections 36.390.7 and .8

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apply to the Secretary of State's office, the statutes did not give Pace
a property interest in continued employment. Unlike Pace, the officials do not be lieve the statutes give nonmerit employees the right to b e terminated only for cause. Instead, the officia ls argue the statutes only give nonmerit employees certain procedural rights. A statutory right to receive review procedures does not itself create a property interest. Sto w v. Cochran , 819 F.2d 864, 866 (8th Cir. 1987); see Bishop v. Wood , 426 U.S
. 341, 345, 347 (1976). To give employees a property interest and a right to due process, a statute must create a legitimate expectation of continue d employm ent, not merely an expectation of review of terminations. Se e Bishop , 426 U.S. at 345; Stow , 819 F.2d at 867. The Missouri courts have not yet decided wheth er sections 36.390.7 and .8 prohibit the termination of nonmerit employees without cause or whether t he statutes simply provide nonmerit employees anopportunity to be heard, and the statutory language is imprec ise. Contrary to the officials' view, we did not resolve thi s issue in Hartley v. Fine , 780 F.2d 1383 (8th Cir. 1985), because w e rejected the due process claim in Hartley on the grounds that the plaintif f was a policymaking em ployee not covered by sections 36.390.7 and .8. Id. at 1386 & n.3. We th ink the district court should address the unresolved property interest question in the first instance.

Because P ace's due process claim hinges on an unsettled question of statutoryconstruction, Pace did not have a clearly established right to receive due process before her termination, and the officials are entitled to qualified immunity on Pace's claim for damages. See Schleck v. Ramsey County , 939 F.2d 638, 641 (8th Cir. 1991). On the other hand, qualified immunity does not shield the officials from Pace 's claim for reinstatement
or other equitable remedies. Grantham v. Trickey , 21 F.3d 289, 295 (8th Cir. 1994). Accordingly, we remand Pace's request for equitable relief. If the district court concludes Pace had a property interest in her job, then the district court should decide whether th ere were review procedures available to Pace that were sufficient

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to sati sfy due process. See Demming v. Housing & Redev. Auth. , 66 F.3 d 950, 953 (8th Cir. 1995); Kennedy v. Robb , 547 F.2d 408, 415 (8th Cir
. 1976), cert. denied , 431 U.S. 959 (1977).
We affirm the summary judgment for t he officials on Pace's claim for damage s, and remand Pace's claim for equitable relief for furthe r proceedings.
A true copy.

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