                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1929
                                  ___________

Lewis D. Holloway,                     *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Western
Sam Reeves, Sally Jones, Doylene       * District of Arkansas.
Fuqua, Cynthia Coughlin, and Randy *
Lawson, Individually and in their      *
Official Capacities as Members of the *
Board of Directors of Bentonville      *
School District No. 6 of Benton        *
County, Arkansas,                      *
                                       *
            Appellants.                *
                                  ___________

                            Submitted: November 12, 2001

                                 Filed: January 24, 2002
                                  ___________

Before MCMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      SMITH,1 District Judge
                             ___________




      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri, sitting by designation.
MORRIS SHEPPARD ARNOLD, Circuit Judge

    The defendants appeal following the district court's denial of their motion for
summary judgment on the basis of qualified immunity. We reverse.

                                         I.
      The defendants are members of the Bentonville school board who voted to fire
Lewis D. Holloway from his position as school superintendent. More than two years
remained on Mr. Holloway's employment contract at the time of his dismissal, and the
board voted to "buy out" the remainder of the contract. In his complaint,
Mr. Holloway claimed that the board deprived him of his right to due process,
because he was fired without notice or hearing, in violation of 42 U.S.C. § 1983. The
defendant board members maintained that they were entitled to qualified immunity.

       We review a rejection of a qualified immunity defense de novo. Burnham v.
Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc). "Qualified immunity shields state
officials from civil liability when 'their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.' "
Doe v. Gooden, 214 F.3d 952, 954 (8th Cir. 2000) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The question here, then, is whether a reasonable person
should have known that voting to terminate Mr. Holloway without notice or hearing,
while simultaneously voting to "buy out" his contract, violated his "clearly
established" constitutional right to due process.

       As the Supreme Court explained in Anderson v. Creighton, 483 U.S. 635, 640
(1987), the "contours" of a right "must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right" before a defense of
qualified immunity is unavailable to him. In the course of that explanation, the
Supreme Court referred specifically to due process rights as an example of rights that,



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while "clearly established law" in the abstract, may be far from clear in their many
and particularized applications. See id. at 639-40.

                                          II.
       Mr. Holloway claimed in his complaint that the defendant board members
knowingly violated rights guaranteed him in the school district's policy and in state
law when they fired him without notice or hearing. But a suit under 42 U.S.C. § 1983
can remedy only a violation of federal rights, see Gooden, 214 F.3d at 955, and so any
violations of rights guaranteed by local or state laws are irrelevant for present
purposes. We therefore concentrate only on the claim that the school board deprived
Mr. Holloway of his property without due process.

       Our cases clearly establish that public employees are entitled to procedural due
process when they are fired from positions in which they have a legitimate
expectation of continued employment, that is, when the employee's entitlement to the
job is sufficiently certain so as to amount to a constitutionally protected property
interest. See Winegar v. Des Moines Indep. Community Sch. Dist., 20 F.3d 895, 899
(8th Cir. 1994), cert. denied, 513 U.S. 964 (1994); Runge v. Dove, 857 F.2d 469, 472-
73 (8th Cir.1988). The evidence, particularly Mr. Holloway's employment contract,
strongly supports a finding that Mr. Holloway had such an expectation of continued
employment in this case.

       But the school board did not simply fire Mr. Holloway and deprive him of the
benefits of employment; instead, it voted to "buy out" the remainder of his contract.
As of the time that Mr. Holloway was terminated, the board members expressed their
intent to compensate him for the value of the remaining salary and benefits owed him
according to the contract's terms, so they did not deprive him of anything of economic
value when they voted to dismiss him.




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       While it is true that the school board later discontinued paying Mr. Holloway
his salary and benefits because he obtained a superintendent's job in Georgia, the
constitutionality of the board members' actions must be assessed as of the time that
the actions were taken. Cf. Gooden, 214 F.3d at 955; Miller v. Schoenen, 75 F.3d
1305, 1308 (8th Cir. 1996). Mr. Holloway presents no evidence of, nor does he even
allege, bad faith on the board's part with respect to the planned buy-out. He does not
allege, for example, that board members publicly said that they would buy out his
contract only to conceal a hidden intent to deprive him of the money due him under
the contract. In fact, the school district continued paying Mr. Holloway for some time
following his dismissal. Thus the board did not deprive Mr. Holloway of the
economic value of his contract, and thus of his property in that sense, when it fired
him.

       The only remaining question is whether the board members deprived
Mr. Holloway of a constitutionally protected interest in the intangible benefits of
serving in the position of superintendent. Mr. Holloway cites Winegar, 20 F.3d at
900, for the proposition that "[a]n employee can have a protected property interest in
a benefit, such as a particular assignment or duty station, if he legitimately expects
to continue in that assignment." Standing alone, and lifted from its environment, that
sentence might support Mr. Holloway's action, but the context of the sentence renders
it inapposite.

       The plaintiff in Winegar, 20 F.3d at 898, 901, a veteran high school teacher
with an "impeccable" record, was to be relocated to a different school following an
altercation with a student. Winegar involved constitutionally protected liberty
interests as well as property interests, we said, since liberty interests arise "where the
employer levels accusations at the employee that are so damaging as to make it
difficult or impossible for the employee to escape the stigma of those charges." Id.
at 899. The Winegar court concluded that allegations of child abuse "are sufficiently
stigmatizing to a teacher's reputation, honor, and good name in the community to

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implicate liberty interests," id., and, further, that the teacher was entitled to due
process because the relocation was essentially a finding of liability, id. at 900-01. We
specifically explained that Mr. Winegar's due process rights might not be in issue if
he had been removed from his job and transferred elsewhere for "ordinary business
or administrative reasons." Id. at 900. No liberty interests are involved in the present
case, however, because Mr. Holloway's good name has not been called into doubt and
no wrongdoing on his part has been alleged.

       The plaintiff's liberty and property interests in "his job, his assignment, and his
good name," 20 F.3d at 901, were inextricably linked in Winegar, a circumstance not
present here. Unlike the transfer in Winegar, Mr. Holloway's removal from his
particular assignment did not create any necessary stigma nor render him
unemployable. He was not a classroom teacher but a school superintendent, and as
a normal part of the political process, school superintendents are frequently fired from
one place and hired at another (as Mr. Holloway's own subsequent job in Georgia
illustrates). Stated differently, Mr. Holloway could expect the full economic benefit
of his contract, but, to borrow from the language of Winegar, 20 F.3d at 900, no
superintendent could "legitimately" expect to continue in that position at any school
district beyond the pleasure of the school board, as school boards and other public
bodies frequently "buy out" the contracts of top managers. Any alleged property
interest in a public policy-making position itself, that is, in a "right" to serve in that
particular position in addition to being paid, if it were recognized, would severely
limit the right of the electorate, through its chosen representatives, to control the
operation of public institutions. If a public institution specifically contracts to create
such a right, of course, the situation would be different. But that did not occur here.

       We note that there are cases that explicitly hold that persons in positions like
Mr. Holloway's do not have a property interest in the positions themselves, and we
find their reasoning persuasive. For instance, in a case very similar to the present
one, the Eleventh Circuit was asked to decide whether a reasonable school board

                                           -5-
member should have known that firing a superintendent without a hearing, but
continuing to pay him the salary and benefits provided in his contract, violated the
superintendent's "clearly established" due process rights. See Harris v. Board of
Educ. of Atlanta, 105 F.3d 591 (11th Cir. 1997) (per curiam). The defendant in
Harris specifically argued that he had a property interest in the intangible benefit of
holding the office of superintendent. The court held that the board members could
not reasonably be expected to know that they were violating the superintendent's
rights, because under the law at the time the "clearly established" rights asserted by
the superintendent were not rights at all. See id. at 596-97; see also Kinsey v. Salado
Indep. Sch. Dist., 950 F.2d 988, 996-97 (5th Cir. 1992) (en banc); Royster v. Board
of Trustees of Anderson County Sch. Dist., 774 F.2d 618, 621 (4th Cir. 1985).

      We hold that there is no constitutionally protected property interest in a public
policy-making position, aside from what are commonly called its economic benefits.
Since Mr. Holloway's due process rights could not have been violated with regard to
a non-existent property interest, the defendant board members are entitled to qualified
immunity.

                                        III.
      For the foregoing reasons, the decision of the district court is reversed.

      A true copy.

             Attest:

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




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