                               _____________

                               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   Circuit
     Judge, and FAGG, Circuit Judge.
                             _____________


FAGG, Circuit Judge.


     While Judith K. Moriarty was the Missouri Secretary of State and
James Kolb was her Executive Deputy, Moriarty and Kolb (collectively the
officials) terminated Lydia Marlene Pace from a clerical position in the
Secretary of State's office.        At the time of Pace's termination, the
Secretary of State's office had not adopted any procedures allowing
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 officials violated her procedural due process rights, Pace
brought this 42 U.S.C. § 1983 action.           Pace sought damages from the
officials in their individual capacities, and requested equitable relief.
The district court concluded Pace's claim failed as a matter of law and
granted the officials summary judgment.        Pace
appeals.    We affirm in part, and reverse and remand in part.


     To show she was entitled to due process before termination, Pace 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 agencies
have the right to appeal terminations to the state Personnel Advisory Board
(PAB), and the PAB should 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 district 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 may
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 believe the statutes give nonmerit employees the right to be
terminated only for cause.    Instead, the officials argue the statutes only
give nonmerit employees certain procedural rights.      A statutory right to
receive review procedures does not itself create a property interest.    Stow
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 continued
employment, not merely an expectation of review of terminations.         See
Bishop, 426 U.S. at 345;    Stow, 819 F.2d at 867.   The Missouri courts have
not yet decided whether sections 36.390.7 and .8 prohibit the termination
of nonmerit employees without cause or whether the statutes simply provide
nonmerit employees an opportunity to be heard, and the statutory language
is imprecise.    Contrary to the officials' view, we did not resolve this
issue in Hartley v. Fine, 780 F.2d 1383 (8th Cir. 1985), because we
rejected the due process claim in Hartley on the grounds that the plaintiff
was a policymaking employee not covered by sections 36.390.7 and .8.     Id.
at 1386 & n.3.   We think the district court should address the unresolved
property interest question in the first instance.


     Because Pace's due process claim hinges on an unsettled question of
statutory construction, 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 there were review procedures
available to Pace that were sufficient




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to satisfy due process.      See Demming v. Housing & Redev. Auth., 66 F.3d
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 the officials on Pace's claim for
damages,   and   remand   Pace's   claim   for   equitable   relief   for   further
proceedings.


     A true copy.


            Attest:


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




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