The Hon. Richard S. Arnold stepped down as Chief Judge of the United States 1 Court of Appeals for the Eighth Circ uit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1726EM

_____________ David C. Singleton, *
* Appellant, *
*
v. *
*
* On Appeal from the United Don Cecil, Individually and in his * States District Court official capacity as Chief of Police; * for the Eastern District Harley Moyer, Ivan Parker, Kevin * of Missouri. Tidwell, Della Price, Individually * and in their official capacities as * Aldermen; and the City of Advance, * Missouri, *
* Appellees. *

___________ Submitted: November 18, 1997 Resubmitted: March 6, 1998

Filed: September 15, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circuit 1 Judges.

___________-2-

RICHARD S. ARNOLD, Chief Judge. David Singleton appeals the District Court’s entry of summary j udgment in favor of the City of Advance, Chief of Police Don Cecil, and four Advance City Counci l members, on his claim under 42 U.S.C. § 1983 (1994) that his termination as a n Advance police officer violated hi s rights to free speech, association, privacy, and due pr ocess. After briefing and oral argument, we affirmed the judgment, one judg e disse nting. See Singleton v. Cecil , 133 F.3d 631, 636 (8th Cir. 1998). We the n granted Mr. Singleton’s petition for rehearing, thus vacating the original panel opinion and judgment. We have now reconsidered the case. We hold that di smissal of a public employee on the sole b asis of a conversation between his wife and daughter is wholly arbitrary, and violates the Due Process Clause of the Fourteenth Amendment.
In 1990, David Singl eton and his wife Joann moved to Advance, Missouri, and David took a job as a police officer with the City of Advance. At the time Davi d Singleton wo rked for the City of Advance, Don Cecil was the Chief of Police, an d Harley Moyer, Ivan Parker, Kevin Tidwell, and Della Price were the four members of Advance’s City Council. William T. Bradshaw served as Advance’s Mayor in 1993 and 1994 . The Singletons’ daughter, Sabrina Scaggs, also lived in Advance at thi s time.
Joann Singleton frequently talked with Sabrina on the phone in the morni ngs, and Sabrina often spoke to her mother on a cordless phone. On the morning of March 8, 1994, a local private investigator named David G eorge was scanning radio frequencies with a ra dio scanner and happened to pick up a conversation between Joann an d Sabrina. In this conversation, Joann said that she could “set up” Chief of Police Don Ce cil by hiring someone to bribe him. George recorded the conversation betwee n Sabrina and Joann.-3-

Lat er that day, David George contacted Chief of Police Cecil and Mayo r Bradshaw and played the recording of the conversation for them. George also provided Cecil wit h a copy of the recording. Cecil then visited the homes of each of the City Council members and played the recording for them. The Council memb ers recognized the voices on the recording as belonging to Joann Singleton and Sabrina Scaggs. On March 11, Mayor Bradshaw called a special meeting o f the City Council to discuss the

recor ding. The Council members were upset (as well they should have been) tha t David Sing leton’s wife and his daughter had discussed attempting to bribe Cecil, and Cecil recommended that the City Council terminate Singleton as an Advance polic e office r. City Attorney Donald Rhodes advised the City Council that as an at-wil l employee, Singleton could be discharged without cause and without a hearing. All four members of the Council then voted in favor of terminating Singleton. Under Missouri law, this vote was sufficient to terminate Singleton’s employment with the City. See Mo. Ann . Stat. § 79.240 (1998). Each City Council member later submitted a n affidavit stating, “My decision to terminate [David Singleton] was based upon th e statements in

the conversations on the tape recording about setting up Chief of Police Cecil by having someone try to bribe him, and nothing else.” Appellees’ App. at 135, 140, 145, 150. Singleton was informed that he was discharged in a letter date d March 11, 1994, the day of the Council meeting.

Da vid Singleton filed this suit against Chief Cecil, the four City Counci l members, and the City of Advance. Single ton alleged under 42 U.S.C. § 1983 that his termination by the defendants violated his rights of free speech and association, du e proc ess, and privacy. He also claimed that he was terminated in retaliation for hi s know ledge of some of Chief Cecil’s allegedly illegal activities. The District Court gr antedsummary judgment in favor of the defendants on all of Singleton’s claims

. Specifically, th e District Court held that Singleton’s retaliatory-discharge claim failed because he could not demonstrate any causal connection between the purporte d protected activity and the termination. Singl eton v. Cecil , 955 F. Supp. 1164, 1166-67 (E.D. Mo. 1997). The Court also held that any claim of a denial of procedural due-4-

process failed because, as an at-will employee, Singleton had no liberty or propert y interest in his job. Id. at 1167. Finally, the District Court held that Singleton’s claim that his rights of intimate association and marital privacy were denied also failed , because “th e defendants had a legitimate, good faith belief that plaintiff, with hi s family, was engaging in improper conduct by conspiring to bribe the Chief of Police.” Id

.

We agree with most of the reasoning of the original panel opinion, whic h affirmed the District

Court’s rejection of Singleton’s arguments that the actions of the Ad vance City Council and Chief Cecil infringed on his rights to intimate associatio n and marital privacy. Se e Singleton v. Cecil , 133 F.3d at 634-35. However, Singleton raised an other argument on appeal, not explicitly addressed in the first panel opinion. Singleton argued that he was discharged solely because of statements made by his wife, and that d ismissal for this reason was arbitrary, capricious, and violative of hi s substant ive-due-process rights. See Appellant’s Br. at 14-15, which makes thi s argument quite clearly:

Under these circumstance [sic] i t is clear that the sole motivation for discharging David Sin gleton was the fact that his wif e had made a statement which angered and “upset ” the Council members. . . . That is precisely the kind o f arbitrary and capricious logic that fails to pa ss even the most relaxed scrutiny of under [sic] substantive due process.

We agree with this argument and, accordingly, we now reverse the judgment of th e District Court and remand for further proceedings.

The Fourteenth Amendment prevents state governments from depriving “an y person of life, liberty, or

property, without due process of law . . ..” The Due Process Clause has long been held to prevent irrational or arbitrary actions by government-5-

officials. See County of Sacramento v. Lewis , 118 S. Ct. 1708, 1716-17 (1998) ; Schware v. Board of Bar Examiners , 353 U.S. 232, 239 (1957); Chesterfiel d De velopment

Corp. v. City of Chesterfield , 963 F.2d 1102, 1104 (8th Cir. 1992 ) (“[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.”) The constitutional guarantee against arbitrary state action is part of the Due Process Clause’s “substantive sphere,” as opposed to its guar antee of fair procedures. County of Sacramento , 118 S. Ct. at 1713. In cases involving the termination of government empl oyees, federal courts

are not to review every error in “the multitude of personnel decisions that are mad e daily by public agencies.” Bishop v. Wood , 426 U.S. 341, 349 (1976) (footnot e omitted). However, if a government employer ’s decision or policy is “so irrational that itmay be br anded ‘arbitrary,’ ” an employee may plausibly assert that he has bee n denied his subs tantive due process rights under the Fourteenth Amendment. Kelley v. Johnson , 425 U.S. 238, 248 (1976) (citation omitted). See Lowman v. Davies , 704 F.2d 1044, 1046 (8th Cir. 1983).

This is one of those rare cases in which, on the basis of the facts in the recor d

now be fore us, a government employee can plausibly argue that he has been denie d substa ntive due process because his employer’s actions in terminating him wer e irrational and arbitrary. The evide nce in this case establishes that David Singleton was terminated because of the conversatio n between Joann Singleton, his wife, and Sabrina Scaggs, his daughter, abou t bribing Chief of Police Don Cecil. In affidavits, each City Coun cil member who voted to discharge Singleton stated that he or she decided t o termi nate Singleton on the basis of David George’s taped recordings, “and nothin g else.” Appellees’ App. at 135, 140, 145, 150. As the defendants noted in their motion forsummary judgment, all the evidence in this case “establishes that [Singleton] wa s terminated solely for the statement s made in the taped conversation.” Appellees’ App. at 73. In granting summary judgment in favor of the defendants, the District Court said that “uncontradicted evidence” showed that the defendants had a “legitimate, good faith-6-

belief” that Singleton w as improperly conspiring to bribe Cecil. 955 F. Supp. at 1167. Evidence to that effect would make a big difference in this case, but the City Council membe rs never testified to any such legitimate, good-faith belief, and we can find n o evidence to t hat effect in the record. Therefore, it seems that the City Counci l terminated Singleton simply because of the conversation between hi s wife and daughter.
In this country, guilt is individual. We do not, as a general rule, punish A for the sins of B. Nor does the law today generally impute the actions of one spouse t o anothe r, or the actions of an adult child to the parent. See Forbes v. Arkansa s Educ.Television Com

m’n , 93 F.3d 497, 501-02 (8th Cir. 1996) (“We do not think any general inference can be drawn from the opinion of one spouse to that of the other.”), rev’d on other grou nds , 118 S. Ct. 1633 (1998). At common law, a husband was held responsible for any crimes committed by his wife in his presence, because the la w pres umed that the wife was coerced or controlled by her husband. See Haning v

. United Sta tes , 59 F.2d 942, 943 (8th Cir. 1932). Modern courts have rejected thi s presumption. Id . See United St ates v. Dege , 364 U.S. 51, 53 (1960) (opining that this common-law rule “implies a view of American womanhood offensive to the et hos of our society”). At common law, a husband was also responsible for his wife’s tor ts. Modern courts have rejected the idea that spouses are liable for one another’s t orts without proof that both spouses are involved in the tortious misconduct. See Petersen v. Heflin , 163 Mich. App. 402, 408, 413 N.W.2d 810, 812 (1987) (holding that a wife is not liable , simply by virtue of the marital relationship, for her husband’s negligent acts); Dodson

v. Anderson , 710 S.W.2d 510, 512 (Tenn. 1986) (holding that a wife is not liable , simply by vi rtue of the marital relationship, for her husband’s fraudulent acts). An d courts have held that a parent is not responsible for a child’s torts by virtue of th e parental relationship alone. See Nat’l DairyProd. Corp. v. Freschi , 393 S.W.2d 48, 53 (Mo. App. 1965); Lane v. Chatham , 251 N.C. 400, 401, 111 S.E.2d 598, 600 (1959). As we noted above, there is no evidence in this case that David Singleton was involved with the plot to bribe Chief of Police Cecil. Given the absence of proof of this-7-

crucial fact, and given the modern view that the marital and parental relationships alone may not be use d to impute liability for misconduct, we hold that it is irrational an d arbitrary to pre sume that someone is involved with a conspiracy, merely because he is related to the conspirators.

We also h old that the City officials’ arbitrary conduct deprived Singleton of his liberty, as that term is used in the Due Process Clause of the Fourteenth Amendment. We readi ly acknowledge that the Fourteenth Amendment does not create an y generali zed free-floating right against depriving someone of “due process” in th e abstract. The Amendment itself states: “No State . . . shall . . . deprive any person of life, liberty, or property, without due process of law . . ..” It is sometimes said tha t persons claiming a violation of this Cl ause must show that they have been “deprived of due proc ess,” but this shorthand statement, though perhaps acceptable in colloquia l speech, is ma

nifestly inaccurate. What one has to be deprived of is either life, liberty, or property. Otherwise, it does not matter whether one has received due process or not. Inthe present case, Mr. Singleton does not claim that the City of Advance, Missouri, has taken either his life or his property. He was an at-will employee of the City an d therefore had no property right in his job as a police officer. Therefore, in order t o establish a claim, plaintiff has to show that he has been deprived of “liberty” as tha t term is used in the Fourteenth Amendment.
This “liberty” has long been understood to include the right “to engage in any of the common occupations of life . . ..” Meyer v. Nebraska , 262 U.S. 390, 399 (1923) (citing cases). “The estab lished doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest by . . . action which is arbitrary o r without reasonable relation to some purpose within the competency of the State t o effect.” Id. at 399-400 . More recent cases are in accord. In Schware v. Board of Bar Examiners , 353 U.S. 232 (1957), the Court, speaking t hrough Mr. Justice Black, hardly a fan of “substantive due process,” had this to say:-8- AState cannot exclude a person from the practice of law or from any oth er occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. . . . Even in applyin g permissible standards, officers of a State cannot exclude an applicant when there is no b asis for their finding that he fails to meet these standards . . ..”

Id. at 238-39. The point is underscored in a footnote:

We ne ed not enter into a discussion whether th e practice of law is a “right” or “privilege.” Regardl ess of how the State’s grant of permission to engage in this occupation is characterized, it is sufficient to s ay that a person cannot be prevented from practicing except for valid reasons.

Id. at 239 n.5.
In the present case, the reason ultimately giv en by the defendants for discharging Mr. Singleton – that his wife and daughter w ere conspiring to bribe the Chief of Police – would doubtless, if it became known, make it very difficult, if not impossible, for him to secure employment as a police officer with any other city. A new employer would pr obably think, contrary to the facts so far established in this case, that the City o f Advance had some good re ason to believe that Mr. Singleton was involved in the plot. Buteven if the only consequence were the loss of this particular job, a due-proces s claim would still be stated under the authoritative precedents of the Supreme Court. In Cafeteria & Restaur ant Workers Union v. McElroy , 367 U.S. 886 (1961), the plaintiff was a short-order cook at a cafeteria operated by a private employer on the premises of

anaval base. She lost her employment when the naval officer in charge of the base , without giving reasons, withdre w her security clearance. The employee ultimately lost her case, but not on account of any notion that she had not been deprivedMcElroy was a 5-to-4 opinion. But on the point that is relevant for presen t 2 purposes , the Court was unanimous. The dissenting opinion refers unequivocally t o “the substantive right

– not to be arbitrarily injured by Government – which the Court purports to recognize.” Id. at 900 (Brennan, J., dissenting).
-9- of “liberty” when she lost her job. The Court s tressed that the plaintiff had lost nothing beyond the opportunity to work in a particular military installation, but it held , nonetheless, that “ ‘constitutional protection does extend to the public servant whose exclusion . . . is patently arbitrary or discriminatory.’ ” Id. at 897, quoting Weiman v. Updegraff , 344 U.S. 183, 192 (1952). The Court went on to draw a di stinction between substantive and procedural due-process rights:

We may assume that Rachel Brauner could no t constitutionally have been excluded from the Gun Factory if th e announced grounds for her exclusion had been patentl y arbitrary or discriminatory – that she could not have bee n kept out because she was a Democrat or a Methodist. I t does not follow, however, that she was entitled to notice and
ahearing when the reason advanced for her exclusion was, as here, entirely rational . . ..

Id. at 898. 2

It is suggested that because Mr. Singleton had no property right in the job, and because no stigmatizin g reason was given for his dismissal at the time it occurred, that he has n o “liberty interest” and therefore no right to due process. Buhr v. Buffal o Public School District No. 38 , 509 F.2d 11 96 (8th Cir. 1974), is cited in support of this proposition, and we concede that the cit ation is apt. In that case, Delores Buhr, a fifthgrade teacher at a public school in North Dakota, claimed, among other things, that the school board had discharge d her arbitrarily. She alleged violations of both substantive and procedural due process, under the Fourteenth Amendment. The school board had-10-

found that Ms. Buhr, a nontenured teacher, had cau sed emotional and nervous stress on the part of some students (a reason that, on its face, is n ot arbitrary). Ms. Buhr asserted that this finding was without supp ort. In rejecting this claim, a panel of this Court held that the plaintiff had not been deprived of “liberty” as that term i s used in the Fourteenth Amendment. In the absence of a property interest in the job, or a stigmatizing reason for dismissal, announced at the time of the employment action itself, our panel said, no right to substantive due process arises.
Ordinarily, we would be bound by Buhr . One panel of this Court may no t overrule a holding of another panel. The Buhr Court itself, however, acknowledged that within this Circ uit “substantive due process claims have spawned two distinct views,” one of which “seems to suggest that substantive due process is . . . violated whenever a state acts to the detriment of an individual in a manner that is arbitrary or capricious.” Id. at 1201 (footnote omitted). The Buhr opinion goes on to cite, id. at 1201 nn.4, 5, cases of this Ci rcuit on both sides of the question. The Buhr panel selected the line of

cases ho lding that there is no right against arbitrary discharge. We do not think thi s obligates our panel to make the same c hoice. Buhr was not an en banc opinion. When there are two lines of authority, a panel is free to s elect the one it believes to be correct. We choose t he older, more traditional line, exemplified by the Supreme Court case s cited in this opinion. The concept of substantive due process is certainly open t o question. Indeed, the Buhr Court, id. at 1201, appeared to believe that substantive due process was a thing of the past. The S upreme Court, however, believes otherwise, and we are bound by its pronouncements. We do not hesitate to affirm that the concept of

su bstantive due process should be carefully limited and applied with great restraint

. This is not at all the same thing, however, as saying that the doctrine no longer exists. It clearly does.

We concede that Mr. Singleton has no “liberty interest” as that term is used i n procedural-due-process cases. He had no constitutional right to a hearing in connection with his discharge. Indeed, a hearing would ha ve no purpose. We know the reason for-11-

the discharge, and Mr . Singleton does not deny that the conversation between his wife and daughter took place. If the City had taken the positionthat Mr. Singleton was a coconspirator

with his wife and daughter, a hearing might have been held on that point , but the members of the City Council have n ever made any such assertion. The concept of “liberty interest,” as it has grown up in proc edural due process cases, beginning with Board of Regents of State Colleges v. Roth , 408 U.S. 564 (1972), simply has n o applicat ionto the present situation. What matters is not whether there is a “libert y interest” for purposes of procedural due process in c ases of a discharge for stigmatizing

reas ons, but rather the right to work at a lawful occupation is part of the “liberty ” protected by the Fourteenth Amendment. As this Court expressly stated in Meis v

. Gun ter , 906 F.2d 364, 368 (8th Cir. 1990), “[t]he terms liberty interest and propert y interest are used in the context of procedural-due-process claims.” “[T]he concepts of liberty a nd property interests, are, as we have noted, useful solely in the context o f procedural due process.” Id. at 369 (emphasis suppl ied). Accord , Bagley v. Rogerson , 5 F.3d 325, 328-39 (8th Cir. 1993).
This case is perhaps a good illustration of the rea sons why words used in judicial opinions, or in legal discourse generally, should not invariably be taken tohave the same meaning, whatever the context. Certainly it is true that no due-process violation , whether procedural or substantive, can occur unless someone has been deprived of life, liberty, or property – in the present case, liberty. It does not follow that the sort o f “liberty” – commonly

called “liberty interest” – required as the basis for a proceduraldue-process claim must also be shown by someone attempting to assert a substantive claimunder the Due Process Clause. The term “liberty” must be given a sensibl e constru ction, one sensitive to the context in which it is being used. When one has a property inte rest in a job, for example, a right not to be discharged except for goo d cause, or when one has been discharged for a stigmatizing reason, it makes good sense to hold that some sort of hearing is necessary, in order to determine either whether good

cause for the discharge exists, or whether the stigmatizing reason is a true one. Bu t when someone, even an at-will employee, is discharged for what later turns out to-12-

be a totally arbitrary reason, one c ompletely at odds with any notion of common sense, whe ther the employee in question had tenure, or was stigmatized at the time of hi s dismissal, has nothing to do with the case. Otherwise, a governmental unit could fire

an at-will employee because his name starts with “A,” or because it rained last night. We are unwilling to accept any such interpretation of the Constitution.

Accord ingly, the order of the District Court, granting defendants’ motion fo r summary judgment, is reversed, a nd this cause is remanded for further proceedings not inconsistent with this opinion.
MAGILL, Circuit Judge, dissenting.
I respectfully dissent.
First, the majority's resolution of this appeal turns on an issue that Singleton never raised: whether the reasons given for his discharge were so arbitrary and irrational as to infringe upon his liberty interest in "engag[ing] in any of the common occupations of life. . . ." Ante at 7. "The first step in substantive due process analysis is to identify the constitutional right at stake." Kaluczky v. City of White Plains , 57 F.3d 202, 211 (2d Ci r. 1995). In this case, the only constitutional rights identified by Singleto n throug hout

the course of these proceedings are the rights of intimate association an d

mar riage. See, e.g. , Appellant's Br. at 12 ("Plaintiffs' [sic] claim . . . rests on the right of intimate family association and the fundamental right of privacy in matters o f marriage and marital life which are part of a basic right of privacy and an intrinsi c eleme nt of personal liberty protected by the Due Process Clause of the Fourteenth Amendment."); id. at v ("[t]he action below was brought . . . to redress the . . . invasion of his f undamental liberty interest in marriage and family association"). Singleton has

never suggested that his discharge violated some more general liberty interest relating to employ ment. Because "[o]ur review is limited to issues specifically raised an d argued in the [appellant's] brief," White v. Moulder , 30 F.3d 80, 82 (8th Cir.-13-

1994) , we should limit ourselves to addressing only those particularized rights upo n which he has chosen to pursue his case.

Second, th e majority's resolution of this appeal does not square with the clear prec edent of this court: "to the extent our cases recognize a constitutional right t o substantive due process, that right is no greater than the right to procedural du e process." Weimer v. Amen , 870 F.2d 1400, 1405-06 (8th Cir. 1989) ( citing Buhr v

. Buffalo Pu b. School Dist. No. 38 , 509 F.2d 1196, 1202 (8th Cir. 1974)); see als o Weathers v. West Yuma County School Dist. R-J-1 , 530 F.2d 1335, 1340-42 (10th Cir. 1976) (following Buhr , recognizing it specifically held that "a constitutional right t o sub stantive due process . . . is no greater than the right to procedural due process " (quotations omitted)). The majority concedes that Singleton has identified no property ri ght, see ante at 7, and no liberty interest to support a procedural due process claim

. See i d. at 10. Under Buhr , Singleton's substantive due process claim thus must b e dismissed. The majority suggests that the Buhr court "acknowledged that within thi s Circuit 'substantive due process claims have spawned two distinct views,'" and that it

me rely "selected the line of cases holding that there is no right against arbitrary discharge." Id. (citations omitted) . Contrary to the majority's assertion, the Buhr court

s p ecifically explained that rather than selecting one line of cases in favor of the other, its opinio n "reconciled" the various lines of cases. See Buhr , 509 F.2d at 1202

. Accordingly, Buhr

is the law of this Circuit with respect to Singleton's substantive due process claim.

Third, the substantive due process claim as articulated by the majority leads to

adubious result: at-will employment will now be unconstitutional in the public sector in the Eig hth Circuit. The majority uses the concept of substantive due process t o precl ude a public employer from discharging an at-will employee for an arbitrary o r irratio nal reason. However, the Supreme Court has consistently held that a publi c
em ployer may discharge an at-will employee for no reason, or even a bad reason , with out running afoul of the Due Process Clause. See Codd v. Velger , 429 U.S. 624,-14-

628 (197 7) ("[s]ince the District Court found that (the plaintiff) had no Fourteenth Amendment property interest in continued employment, the adequacy or even th e existence of reasons for failing to rehire him presents nofederal constitutional question" (footnote omitted)); Bishop v. Wood , 426 U.S. 341, 348-50 (1976) (if employer's reason for discharging employee were fals e, employee still could not state due process claim).
The majority opinion broadens Singleton's liberty interest in "engag[ing] in any of th e common occupations of life," ante at 7 (quotations omitted), to hold that he has a liberty interest in continuing employme nt as a police officer with the City of Advance absent some nonarbitrary and rational reason to discharge him. This cannot be squared with either the concept of at-will employment or with existing precedent. Indeed, b y
c r afting a right to be free from arbitrary government termination, the majority reaches the anomalous conclusion that "the same element--'freedom from arbitrariness'--should at once entitle a person to due process and also be a part of the process which is due." Jeffries v. Turkey Run Consol. Sch. Dist. , 492 F.2d 1, 4 n.8 (7th Cir. 1974) (Judg e Stevens). Moreover, the majority ignores that Singleton was merely discharged from one job--that of policeman--and Singleton has not suggested that he cannot achieve any other employment with the City of Advance or any other city. See Cafeteria & Restaur ant

Workers Union, Local 473 v. McElroy , 367 U.S. 886, 895-96 (1961 ) (holding that where plaintiff "remained entirely free to obtain employment" either with her em ployer or another employer, her liberty right in "follow[ing] a chosen trade o r profession" was not implicated).

At worst, the City's decision to discharge Singleton was made on the mistake n belief that Singleton was aware of and possibly i nvolved in his wife and daughter's plan to bribe the chief of police. However, the Supreme Court has specific ally explained that [w]e must accept the harsh fact that numerous individual mistakes ar e inevitable in the day-to-day administration of our affairs. The UnitedI disagree with the majority's suggestion that Roth and other employment- related 3 "liberty interest" cases are inapplicable to the present situation. Certainly, they ar e relevant in determining the constitutional rights a public at-will employee has in hi s continued employment.
-15- States Constitution cannot feasibly be construed to require federal judicial review for every such error. In the absence of any claim that the publi c emp loyer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official a ction . . . can best be corrected in other ways . The Due Process Clause of th e Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions.
Bishop , 426 U.S. at 349-50 (emphasis added). In this case, it is clear that the City of Advance's motivation in dischargin g Singleton was not any desire to curtail or penalize the exercise of his constitutionally protected rights.

Moreover , in Board of Regents v. Roth , 408 U.S. 564 (1972), the Court 3 explained that "[i] t stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but remains as free as before to seek another." Id. at 575. "This same conclusion applies to the discharge of a publi c employee whos e position is terminable at the will of the employer when there is n o public disclosure of the r

easons for the discharge." Bishop , 426 U.S. at 348. Reasons given in private to Singleton or while participa ting in this litigation do not constitute the requisite public disclosure. See id. Singleton bears the burden of demonstrating that "the de fendants, in connection with discharging him, publicly made untrue charge s against hi m that would stigmatize him so as to seriously damage his standing an d associa tions in the community, or foreclose his freedom to take advantage of othe r employment opportunities." Waddell v. Forney , 108 F.3d 889, 895 (8th Cir. 1997). In this cas e, no reason was given for the City of Advance's decision to dismiss Singleton until the city council members provided affidavits during litigation. See-16-

Appellees' App. at 135, 140, 145, 150, 242. Accordingly, Singleton 's discharge was not in violation of any substantive due process.
Despite the Supreme Court's pronouncement that "[t]he Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions," Bishop , 426 U.S. at 350, th e majority's holding permits a discharged at-will public employee to characterize a wrongful discharge claim as a substant ive due process claim, and thus bring suit in federal court. Indeed, any at-will public employe e disgruntledover a poor job evaluation or a reprimand may bring a substantive du e proce ss claim in this court to the extent that the employer's action threatens tha t emplo yee's now-constitutional right to work. This court must now, on a case-by-case basis, reconcile the fact that a public employer may constitutionally discharge an at-will employee for no reason or a false reason, while that same employer cannot discharge that same employee for an arbitrary and irrational rea son. Where will the line be drawn between a false reason for which an employee cannot seek constitutional redress and

an arbitrary and irrational reason? This decision forces this court to function in a role which it has heretofore strenuously resisted--that of a "super-personnel department[ ] second-g uessing the wisdom of . . . personnel decisions." Hill v. St. Louis Univ. , 123 F.3d 1114, 1120 (8th Cir. 1997) (quotations omi tted). By recognizing a right to be free from arbitrary government action, the majority in essence holds that "every time a citizen [is] affected by governmental action, he [will] have a federal right to judicia l review." Jeffries , 492 F.2d at 4 n.8. The separation-of-powers doctrine requires this court to exercise greater self-restraint; "[t]he fe deral judiciary is not a good-government watchdog," Nunez v. City of Los Angeles , 147 F.3d 867, 874 (9th Cir. 199 8), and "[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. Settin g aside allegedl y "arbitrary" and "irrational" discharges is simply beyond the purview of the federal judiciary.-17-

In sum, even if the City of Advance term inated Singleton for an arbitrary reason, the termination failed to impair a liberty interest or a property interest, and thus cannot be cognizable in a substantive due process claim.
A true copy.

Attest:

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