                      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,1 Chief Judge, McMILLIAN and MAGILL, Circuit
      Judges.
                           ___________


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

       David Singleton appeals the District Court’s entry of summary judgment in favor
of the City of Advance, Chief of Police Don Cecil, and four Advance City Council
members, on his claim under 42 U.S.C. § 1983 (1994) that his termination as an
Advance police officer violated his rights to free speech, association, privacy, and due
process. After briefing and oral argument, we affirmed the judgment, one judge
dissenting. See Singleton v. Cecil, 133 F.3d 631, 636 (8th Cir. 1998). We then
granted Mr. Singleton’s petition for rehearing, thus vacating the original panel opinion
and judgment. We have now reconsidered the case. We hold that dismissal of a public
employee on the sole basis of a conversation between his wife and daughter is wholly
arbitrary, and violates the Due Process Clause of the Fourteenth Amendment.

      In 1990, David Singleton 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 David
Singleton worked for the City of Advance, Don Cecil was the Chief of Police, and
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 this
time.

      Joann Singleton frequently talked with Sabrina on the phone in the mornings, and
Sabrina often spoke to her mother on a cordless phone. On the morning of March 8,
1994, a local private investigator named David George was scanning radio frequencies
with a radio scanner and happened to pick up a conversation between Joann and
Sabrina. In this conversation, Joann said that she could “set up” Chief of Police Don
Cecil by hiring someone to bribe him. George recorded the conversation between
Sabrina and Joann.




                                          -2-
       Later that day, David George contacted Chief of Police Cecil and Mayor
Bradshaw and played the recording of the conversation for them. George also provided
Cecil with 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 members recognized
the voices on the recording as belonging to Joann Singleton and Sabrina Scaggs. On
March 11, Mayor Bradshaw called a special meeting of the City Council to discuss the
recording. The Council members were upset (as well they should have been) that
David Singleton’s wife and his daughter had discussed attempting to bribe Cecil, and
Cecil recommended that the City Council terminate Singleton as an Advance police
officer. City Attorney Donald Rhodes advised the City Council that as an at-will
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 an
affidavit stating, “My decision to terminate [David Singleton] was based upon the
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 dated
March 11, 1994, the day of the Council meeting.

       David Singleton filed this suit against Chief Cecil, the four City Council
members, and the City of Advance. Singleton alleged under 42 U.S.C. § 1983 that his
termination by the defendants violated his rights of free speech and association, due
process, and privacy. He also claimed that he was terminated in retaliation for his
knowledge of some of Chief Cecil’s allegedly illegal activities. The District Court
granted summary judgment in favor of the defendants on all of Singleton’s claims.
Specifically, the District Court held that Singleton’s retaliatory-discharge claim failed
because he could not demonstrate any causal connection between the purported
protected activity and the termination. Singleton 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

                                          -3-
process failed because, as an at-will employee, Singleton had no liberty or property
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 “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.

       We agree with most of the reasoning of the original panel opinion, which
affirmed the District Court’s rejection of Singleton’s arguments that the actions of the
Advance City Council and Chief Cecil infringed on his rights to intimate association
and marital privacy. See Singleton v. Cecil, 133 F.3d at 634-35. However, Singleton
raised another 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 dismissal for this reason was arbitrary, capricious, and violative of his
substantive-due-process rights. See Appellant’s Br. at 14-15, which makes this
argument quite clearly:

                    Under these circumstance [sic] it is clear that the sole
             motivation for discharging David Singleton was the fact that
             his wife had made a statement which angered and “upset”
             the Council members. . . . That is precisely the kind of
             arbitrary and capricious logic that fails to pass even the most
             relaxed scrutiny of under [sic] substantive due process.



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

      The Fourteenth Amendment prevents state governments from depriving “any
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

                                          -4-
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); Chesterfield
Development 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 guarantee of fair procedures. County of Sacramento, 118 S.
Ct. at 1713. In cases involving the termination of government employees, federal courts
are not to review every error in “the multitude of personnel decisions that are made
daily by public agencies.” Bishop v. Wood, 426 U.S. 341, 349 (1976) (footnote
omitted). However, 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. 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 record
now before us, a government employee can plausibly argue that he has been denied
substantive due process because his employer’s actions in terminating him were
irrational and arbitrary. The evidence in this case establishes that David Singleton was
terminated because of the conversation between Joann Singleton, his wife, and Sabrina
Scaggs, his daughter, about bribing Chief of Police Don Cecil. In affidavits, each City
Council member who voted to discharge Singleton stated that he or she decided to
terminate Singleton on the basis of David George’s taped recordings, “and nothing
else.” Appellees’ App. at 135, 140, 145, 150. As the defendants noted in their motion
for summary judgment, all the evidence in this case “establishes that [Singleton] was
terminated solely for the statements 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

                                          -5-
belief” that Singleton was 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
members never testified to any such legitimate, good-faith belief, and we can find no
evidence to that effect in the record. Therefore, it seems that the City Council
terminated Singleton simply because of the conversation between his 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 to
another, or the actions of an adult child to the parent. See Forbes v. Arkansas
Educ.Television Comm’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 grounds, 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 law
presumed that the wife was coerced or controlled by her husband. See Haning v.
United States, 59 F.2d 942, 943 (8th Cir. 1932). Modern courts have rejected this
presumption. Id. See United States v. Dege, 364 U.S. 51, 53 (1960) (opining that this
common-law rule “implies a view of American womanhood offensive to the ethos of our
society”). At common law, a husband was also responsible for his wife’s torts. Modern
courts have rejected the idea that spouses are liable for one another’s torts 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 virtue of the marital relationship, for her husband’s fraudulent acts). And
courts have held that a parent is not responsible for a child’s torts by virtue of the
parental relationship alone. See Nat’l Dairy Prod. 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


                                           -6-
crucial fact, and given the modern view that the marital and parental relationships alone
may not be used to impute liability for misconduct, we hold that it is irrational and
arbitrary to presume that someone is involved with a conspiracy, merely because he is
related to the conspirators.

        We also hold 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 readily acknowledge that the Fourteenth Amendment does not create any
generalized free-floating right against depriving someone of “due process” in the
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 that
persons claiming a violation of this Clause must show that they have been “deprived of
due process,” but this shorthand statement, though perhaps acceptable in colloquial
speech, is manifestly 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.
In the 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 and
therefore had no property right in his job as a police officer. Therefore, in order to
establish a claim, plaintiff has to show that he has been deprived of “liberty” as that
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 established doctrine is that this liberty may not be interfered with,
under the guise of protecting the public interest by . . . action which is arbitrary or
without reasonable relation to some purpose within the competency of the State to
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 through Mr. Justice Black, hardly
a fan of “substantive due process,” had this to say:


                                           -7-
                    A State cannot exclude a person from the practice of
             law or from any other occupation in a manner or for reasons
             that contravene the Due Process or Equal Protection Clause
             of the Fourteenth Amendment. . . . Even in applying
             permissible standards, officers of a State cannot exclude an
             applicant when there is no basis for their finding that he fails
             to meet these standards . . ..”

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

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

Id. at 239 n.5.

       In the present case, the reason ultimately given by the defendants for discharging
Mr. Singleton – that his wife and daughter were 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
probably think, contrary to the facts so far established in this case, that the City of
Advance had some good reason to believe that Mr. Singleton was involved in the plot.
But even if the only consequence were the loss of this particular job, a due-process
claim would still be stated under the authoritative precedents of the Supreme Court. In
Cafeteria & Restaurant 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
a naval base. She lost her employment when the naval officer in charge of the base,
without giving reasons, withdrew her security clearance. The employee ultimately lost
her case, but not on account of any notion that she had not been deprived



                                           -8-
of “liberty” when she lost her job. The Court stressed 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 distinction between
substantive and procedural due-process rights:

               We may assume that Rachel Brauner could not
               constitutionally have been excluded from the Gun Factory if
               the announced grounds for her exclusion had been patently
               arbitrary or discriminatory – that she could not have been
               kept out because she was a Democrat or a Methodist. It
               does not follow, however, that she was entitled to notice and
               a hearing 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 stigmatizing reason was given for his dismissal at the time it occurred, that
he has no “liberty interest” and therefore no right to due process. Buhr v. Buffalo
Public School District No. 38, 509 F.2d 1196 (8th Cir. 1974), is cited in support of this
proposition, and we concede that the citation is apt. In that case, Delores Buhr, a fifth-
grade teacher at a public school in North Dakota, claimed, among other things, that the
school board had discharged her arbitrarily. She alleged violations of both substantive
and procedural due process, under the Fourteenth Amendment. The school board had


       2
       McElroy was a 5-to-4 opinion. But on the point that is relevant for present
purposes, the Court was unanimous. The dissenting opinion refers unequivocally to
“the substantive right – not to be arbitrarily injured by Government – which the Court
purports to recognize.” Id. at 900 (Brennan, J., dissenting).

                                           -9-
found that Ms. Buhr, a nontenured teacher, had caused emotional and nervous stress on
the part of some students (a reason that, on its face, is not arbitrary). Ms. Buhr asserted
that this finding was without support. In rejecting this claim, a panel of this Court held
that the plaintiff had not been deprived of “liberty” as that term is 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 not
overrule a holding of another panel. The Buhr Court itself, however, acknowledged that
within this Circuit “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 Circuit on both sides of the question. The Buhr panel selected the line of
cases holding that there is no right against arbitrary discharge. We do not think this
obligates our panel to make the same choice. Buhr was not an en banc opinion. When
there are two lines of authority, a panel is free to select the one it believes to be correct.
We choose the older, more traditional line, exemplified by the Supreme Court cases
cited in this opinion. The concept of substantive due process is certainly open to
question. Indeed, the Buhr Court, id. at 1201, appeared to believe that substantive due
process was a thing of the past. The Supreme Court, however, believes otherwise, and
we are bound by its pronouncements. We do not hesitate to affirm that the concept of
substantive 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 in
procedural-due-process cases. He had no constitutional right to a hearing in connection
with his discharge. Indeed, a hearing would have no purpose. We know the reason for

                                            -10-
the discharge, and Mr. Singleton does not deny that the conversation between his wife
and daughter took place. If the City had taken the position that Mr. Singleton was a co-
conspirator with his wife and daughter, a hearing might have been held on that point,
but the members of the City Council have never made any such assertion. The concept
of “liberty interest,” as it has grown up in procedural due process cases, beginning with
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), simply has no
application to the present situation. What matters is not whether there is a “liberty
interest” for purposes of procedural due process in cases of a discharge for stigmatizing
reasons, 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.
Gunter, 906 F.2d 364, 368 (8th Cir. 1990), “[t]he terms liberty interest and property
interest are used in the context of procedural-due-process claims.” “[T]he concepts of
liberty and property interests, are, as we have noted, useful solely in the context of
procedural due process.” Id. at 369 (emphasis supplied). Accord, Bagley v. Rogerson,
5 F.3d 325, 328-39 (8th Cir. 1993).

       This case is perhaps a good illustration of the reasons why words used in judicial
opinions, or in legal discourse generally, should not invariably be taken to have 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 of
“liberty” – commonly called “liberty interest” – required as the basis for a procedural-
due-process claim must also be shown by someone attempting to assert a substantive
claim under the Due Process Clause. The term “liberty” must be given a sensible
construction, one sensitive to the context in which it is being used. When one has a
property interest in a job, for example, a right not to be discharged except for good
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. But
when someone, even an at-will employee, is discharged for what later turns out to

                                          -11-
be a totally arbitrary reason, one completely at odds with any notion of common sense,
whether the employee in question had tenure, or was stigmatized at the time of his
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.

      Accordingly, the order of the District Court, granting defendants’ motion for
summary judgment, is reversed, and 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 Cir. 1995). In this case, the only constitutional rights identified by Singleton
throughout the course of these proceedings are the rights of intimate association and
marriage. 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 of
marriage and marital life which are part of a basic right of privacy and an intrinsic
element 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 fundamental liberty interest in marriage and family association"). Singleton has
never suggested that his discharge violated some more general liberty interest relating
to employment. Because "[o]ur review is limited to issues specifically raised and
argued in the [appellant's] brief," White v. Moulder, 30 F.3d 80, 82 (8th Cir.

                                            -12-
1994), we should limit ourselves to addressing only those particularized rights upon
which he has chosen to pursue his case.

       Second, the majority's resolution of this appeal does not square with the clear
precedent of this court: "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." Weimer v. Amen, 870 F.2d 1400, 1405-06 (8th Cir. 1989) (citing Buhr v.
Buffalo Pub. School Dist. No. 38, 509 F.2d 1196, 1202 (8th Cir. 1974)); see also
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 to
substantive due process . . . is no greater than the right to procedural due process"
(quotations omitted)). The majority concedes that Singleton has identified no property
right, see ante at 7, and no liberty interest to support a procedural due process claim.
See id. at 10. Under Buhr, Singleton's substantive due process claim thus must be
dismissed. The majority suggests that the Buhr court "acknowledged that within this
Circuit 'substantive due process claims have spawned two distinct views,'" and that it
merely "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
specifically explained that rather than selecting one line of cases in favor of the other,
its opinion "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
a dubious result: at-will employment will now be unconstitutional in the public sector
in the Eighth Circuit. The majority uses the concept of substantive due process to
preclude a public employer from discharging an at-will employee for an arbitrary or
irrational reason. However, the Supreme Court has consistently held that a public
employer may discharge an at-will employee for no reason, or even a bad reason,
without running afoul of the Due Process Clause. See Codd v. Velger, 429 U.S. 624,

                                          -13-
628 (1977) ("[s]ince 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"
(footnote omitted)); Bishop v. Wood, 426 U.S. 341, 348-50 (1976) (if employer's reason
for discharging employee were false, employee still could not state due process claim).

        The majority opinion broadens Singleton's liberty interest in "engag[ing] in any
of the common occupations of life," ante at 7 (quotations omitted), to hold that he has
a liberty interest in continuing employment 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, by
crafting 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) (Judge
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 &
Restaurant 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 employer or another employer, her liberty right in "follow[ing] a chosen trade or
profession" was not implicated).

        At worst, the City's decision to discharge Singleton was made on the mistaken
belief that Singleton was aware of and possibly involved in his wife and daughter's plan
to bribe the chief of police. However, the Supreme Court has specifically explained that
        [w]e must accept the harsh fact that numerous individual mistakes are
        inevitable in the day-to-day administration of our affairs. The United




                                          -14-
       States Constitution cannot feasibly be construed to require federal judicial
       review for every such error. In the absence of any claim that the public
       employer was motivated by a desire to curtail or to penalize the exercise
       of an employee's constitutionally protected rights, we must presume that
       official action . . . can best be corrected in other ways. The Due Process
       Clause of the 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 discharging 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),3 the Court
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 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. Reasons
given in private to Singleton or while participating in this litigation do not constitute the
requisite public disclosure. See id. Singleton bears the burden of demonstrating that
"the defendants, in connection with discharging him, publicly made untrue charges
against him that would stigmatize him so as to seriously damage his standing and
associations in the community, or foreclose his freedom to take advantage of other
employment opportunities." Waddell v. Forney, 108 F.3d 889, 895 (8th Cir. 1997). In
this case, no reason was given for the City of Advance's decision to dismiss Singleton
until the city council members provided affidavits during litigation. See



       3
        I disagree with the majority's suggestion that Roth and other employment-related
"liberty interest" cases are inapplicable to the present situation. Certainly, they are
relevant in determining the constitutional rights a public at-will employee has in his
continued employment.

                                           -15-
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, the majority's holding permits a discharged at-will
public employee to characterize a wrongful discharge claim as a substantive due process
claim, and thus bring suit in federal court. Indeed, any at-will public employee
disgruntled over a poor job evaluation or a reprimand may bring a substantive due
process claim in this court to the extent that the employer's action threatens that
employee'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 reason. 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-guessing the wisdom of . . . personnel decisions." Hill v. St. Louis Univ., 123
F.3d 1114, 1120 (8th Cir. 1997) (quotations omitted). 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 judicial
review." Jeffries, 492 F.2d at 4 n.8. The separation-of-powers doctrine requires this
court to exercise greater self-restraint; "[t]he federal judiciary is not a good-government
watchdog," Nunez v. City of Los Angeles, 147 F.3d 867, 874 (9th Cir. 1998), 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. Setting
aside allegedly "arbitrary" and "irrational" discharges is simply beyond the purview of
the federal judiciary.




                                          -16-
       In sum, even if the City of Advance terminated 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.




                                          -17-
