                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 07-3942
                                 ___________

Perry Barnes; Matthew Miller;            *
David Rathjen; Michael Schmid;           *
Kurt Denker; Richard Berggen;            *
Patrick McDowell,                        *
                                         *
             Plaintiffs – Appellants,    *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
City of Omaha, A Municipal               *
Corporation; Michael G. Fahey,           *
Individually And In His Official         *
Capacity; Thomas Warren,                 *
Individually And In His Official         *
Capacity; Paul Landow, Individually      *
And In His Official Capacity,            *
                                         *
            Defendants – Appellees.      *
                                    ___________

                           Submitted: June 12, 2008
                              Filed: July 31, 2009
                               ___________

Before MELLOY, ARNOLD, and BENTON, Circuit Judges.
                           ___________
MELLOY, Circuit Judge.

      The Plaintiffs appeal the district court’s1 adverse grant of summary judgment
dismissing their claim that the Defendants unconstitutionally deprived them of their
employment without due process of law. We affirm.

                                            I.

        The parties do not dispute the material facts of this case. The Plaintiffs were
police officers for the City of Elkhorn, Nebraska, which Nebraska law classified as
a “first class” city. See Neb. Rev. Stat. § 16-101. Nebraska law classifies Defendant
City of Omaha, Nebraska, as a “metropolitan class” city. See id. § 14-101. At all
times relevant to this action, Defendant Michael G. Fahey was the Mayor of Omaha,
Defendant Thomas Warren was Omaha’s Chief of Police, and Defendant Paul Landow
was Mayor Fahey’s Chief of Staff.

       Nebraska law permits metropolitan class cities to annex “any adjoining city of
the first class having less than ten thousand population.” Id. § 14-117. Upon
annexing a first class city, Nebraska Revised Statute section 14-118 states that the
metropolitan class city “succeed[s] to all the . . . contracts, obligations, and choses in
action of every kind held by or belonging to the city . . . annexed or merged with it[]
and . . . shall be liable for and recognize, assume, and carry out all valid contracts,
obligations and licenses of any city . . . so annexed.” Subject to limits irrelevant to
this matter, Nebraska Revised Statute section 14-124 also states that “[u]pon such
annexation and merger taking effect the terms and tenure of all offices and officers of
any city or village so consolidated with the metropolitan city shall terminate and
entirely cease.” Id. § 14-124. Finally, also subject to limitations irrelevant to this
matter, Nebraska law permits first class cities to annex “any contiguous or adjacent

      1
         The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

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lands, lots, tracts, streets, or highways as are urban or suburban in character and in
such direction as may be deemed proper.” Id. § 16-117.

      In 2005, Elkhorn’s population was less than 10,000. To prevent Omaha from
annexing it, Elkhorn attempted to raise its population above 10,000 by passing
ordinances to annex its surrounding territories. In response, Omaha passed an
ordinance to annex Elkhorn, effective March 24, 2005.

         On March 9, 2005, Elkhorn sued Omaha in state court. Elkhorn sought an
injunction to prohibit Omaha’s enforcement of its annexation ordinance as well as a
declaration that Omaha’s annexation ordinance was invalid. Omaha counterclaimed
and sought an injunction to prevent Elkhorn from enforcing its annexation ordinances
and a declaration that Elkhorn’s annexation ordinances were invalid. On March 18,
2005, both cities agreed to a mutual injunction preventing them from enforcing their
annexation ordinances pending the legal resolution of their dispute. After a bench
trial, a state district court found in Omaha’s favor but extended the injunction pending
Elkhorn’s appeal. On January 12, 2007, the Nebraska Supreme Court affirmed the
state district court’s findings in favor of Omaha and concluded that “Elkhorn ceased
to exist as a separate municipality on March 24, 2005, the date that Omaha’s
annexation ordinance became effective.” City of Elkhorn v. City of Omaha, 725
N.W.2d 792, 811 (Neb. 2007).

       On March 1, 2007, the state district court entered judgment in favor of Omaha
in accordance with the Nebraska Supreme Court’s mandate. That same day, Omaha
officials began providing written notices to the Plaintiffs informing them that their
employment had been terminated. After each Plaintiff received notification, the
Plaintiffs requested due process hearings to challenge their terminations. Omaha
officials denied the Plaintiffs’ requests, however, because they stated that the Plaintiffs
had not been Omaha employees and, therefore, were not entitled to hearings.



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       On March 23, 2007, the Plaintiffs filed this action in federal court. The
Plaintiffs allege that the Defendants unconstitutionally deprived them of their
employment without due process, entitling them to equitable relief and damages under
the Fifth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
The district court dismissed the Plaintiffs claims on summary judgment, and the
Plaintiffs appeal.

                                             II.

       “We review de novo the district court’s grant of summary judgment, viewing
all evidence and reasonable inferences in the light most favorable to the nonmoving
party.” Habhab v. Hon, 536 F.3d 963, 966 (8th Cir. 2008) (quotation omitted). “If
there is no genuine issue of material fact and the moving party is entitled to judgment
as a matter of law, we may affirm summary judgment for any reason supported by the
record, even if it differs from the rationale of the district court.” Id. (internal quotation
and alterations omitted).

      The Fourteenth Amendment to the U.S. Constitution prohibits state deprivations
of property without due process of law,2 and “[i]t is . . . well settled that municipal
ordinances adopted under state authority constitute state action and are within the


       2
         To the extent that the Plaintiffs rely on the Fifth Amendment, their claims
must fail. The Fifth Amendment’s Due Process Clause applies only to the federal
government or federal actions, and the Plaintiffs have not alleged that the federal
government or a federal action deprived them of property. See Dusenbery v. United
States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment
prohibits the United States, as the Due Process Clause of the Fourteenth Amendment
prohibits the States, from depriving any person of property without ‘due process of
law.’”); Junior Chamber of Commerce of Kansas City, Mo. v. Mo. State Junior
Chamber of Commerce, 508 F.2d 1031, 1033 (8th Cir. 1975) (recognizing that a
“federal action” is necessary “before there is any deprivation of due process in
violation of the fifth amendment”).

                                            -4-
prohibition of the [Fourteenth Amendment].” Carlson v. California, 310 U.S. 106,
109 n.1 (1940) (quotation omitted). As a threshold matter, plaintiffs alleging that a
state deprived them of employment without due process must first demonstrate that
they had property interests in their continued employment. See Smutka v. City of
Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006). For due process purposes, a plaintiff
has a property interest in disputed property when he or she has a “legitimate claim of
entitlement” to it. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972);
see also Bennett v. Watters, 260 F.3d 925, 927 (8th Cir. 2001) (stating, where a
terminated police department employee had alleged that a city terminated her without
due process, that “[a] property interest arises from a ‘legitimate claim of entitlement’
to continuing employment” (quoting Roth, 408 U.S. at 577)). A legitimate claim of
entitlement stems from “state law or some other ‘independent source’” sufficient to
establish “‘mutually explicit understandings’” of entitlement. Thompson v. Adams,
268 F.3d 609, 611 (8th Cir. 2001) (quoting Perry v. Sindermann, 408 U.S. 593, 601
(1972)).

       The Plaintiffs argue that they had a legitimate claim of entitlement to
employment with Omaha because, under Nebraska Revised Statute section 14-118,
“Omaha automatically assumed ]the Plaintiffs’] employment when it annexed
Elkhorn.” As Omaha employees, the Plaintiffs contend that a Collective Bargaining
Agreement between Omaha and its police officers (the “Omaha CBA”) governed their
relationship and prohibited Omaha from terminating them except “for cause.”
Accordingly, the Plaintiffs assert that they had property interests in their positions.
See Bennett, 260 F.3d at 927 (“A public employee has a property interest when there
are contractual or statutory limitations on the employer’s ability to terminate an
employee, such as a contractual right to be terminated only for cause.” (internal
quotation omitted)).

      The Defendants assert that the Plaintiffs cannot establish a due process violation
because the Plaintiffs had no legitimate claim of entitlement to employment with

                                          -5-
Omaha. They argue that, pursuant to Nebraska Revised Statute section 14-124, the
Plaintiffs were Elkhorn “officers” whose positions statutorily “terminate[d] and
entirely cease[d]” when Omaha annexed Elkhorn. Alternatively, the Defendants argue
that, pursuant to section 14-118, Omaha at most assumed Elkhorn’s employment
obligations to the Plaintiffs when it annexed Elkhorn. As such, they claim that the
Plaintiffs’ employment with Omaha was subject to a severance provision3 in a

      3
          Section 13 of the Elkhorn CBA specifically states:

      TERMINATION/SEVERANCE - In the event any action is taken by any
      state authority or the City of Omaha, Douglas County, or any other
      political subdivision of the State of Nebraska for the purpose of
      annexing, consolidating, or merging the City of Elkhorn (hereinafter
      “City”) or any proceedings which would result in the City no longer
      being an independent political subdivision of the State of Nebraska and
      which would result in the elimination, termination or substantially
      changing of the terms and conditions of employment status of law
      enforcement employees of the City, the employees of the City covered
      by this agreement shall, subject to the terms and conditions of the
      Article, be paid compensation equal to fifty-two (52) weeks, including
      all fringe benefits including insurance, to which the law enforcement
      employee is entitled when the action occurred; provided, however, that
      if during the fifty-two (52) week period the employee becomes employed
      as a law enforcement officer by any political subdivision of the State of
      Nebraska, the right to the compensation terminates at the commencement
      of such employment.

      ....

      The provision of this Article shall not apply if no annexation,
      consolidation or merger occurs which would result in the City ceasing
      to be an independent political subdivision of the State of Nebraska.

      Nothing in this Article shall be interpreted or construed to create any
      additional employment rights or rights other than expressly set forth in
      this Article or employment obligations of the City nor shall this Article

                                          -6-
Collective Bargaining Agreement between Elkhorn and its police officers (the
“Elkhorn CBA”) that prevented the Plaintiffs from possessing any legitimate claim
of entitlement to employment with Omaha.

       While the parties agree that a finding that the Plaintiffs were “officers” under
section 14-124 would resolve this case in the Defendants’ favors, we agree with the
district court that we need not address that unanswered question of state law to resolve
this dispute. In City of Omaha v. City of Elkhorn, 752 N.W.2d 137 (Neb. 2008), the
Nebraska Supreme Court expressly recognized that, pursuant to section 14-118,
Omaha assumed Elkhorn’s contractual obligations to the Plaintiffs when it annexed
Elkhorn. Specifically, the court reviewed Omaha’s claim that multiple severance
provisions in certain Elkhorn employee contracts, including the severance provision
in the Elkhorn CBA, were invalid and unenforceable. City of Omaha, 752 N.W.2d at
141–43. Elkhorn and the Fraternal Order of the Police Lodge No. 53—the police
union that had negotiated the Elkhorn CBA on the Plaintiffs’ behalf—argued that
Omaha did not have standing to dispute the validity of the severance provisions
because Omaha had not been a party to the relevant contracts. Id. at 144. The
Nebraska Supreme Court rejected those arguments and held that, pursuant to
section 14-118, “Omaha . . . succeeded to and became liable for the severance



      create any expectation of a right to continued employment of a law
      enforcement employee by the City.

      This article shall be binding on any successor, entity, political
      subdivision of the State of Nebraska or any other political entity which
      succeeds, annexes, merges or otherwise takes over or replaces the City
      and any of its functions or duties; provided further, that this Article shall
      be automatically renewed and incorporated in any collective bargaining
      agreements or employment contracts between the law enforcement
      employee and the City until the parties agree to amend or eliminate.



                                          -7-
provisions on March 24, 2005, the date Omaha’s annexation ordinance became
effective.” Id. at 144–45, 147. Because Omaha succeeded to Elkhorn’s contractual
obligations under the Elkhorn CBA, we therefore agree with the Defendants that the
Elkhorn CBA, not the Omaha CBA, governed any potential employment relationship
that existed between the Plaintiffs and Omaha.4

       Construing the Elkhorn CBA as a whole and “read[ing] the terms of the
agreement ‘in their context,’” see Sheet Metal Workers, 255 F.3d at 551(quoting
Mastro Plastics Corp., 350 U.S. at 281) (additional quotation omitted), we further
agree with the Defendants that the severance provision of the Elkhorn CBA prevented
the Plaintiffs from possessing property interests in employment positions with Omaha.
By the terms of the severance provision, which is a provision for which the Plaintiffs
specifically negotiated, see City of Omaha, 752 N.W.2d at 141–43, it is evident that
the parties to the Elkhorn CBA contemplated and accounted for the Plaintiffs’
terminations upon Omaha’s annexation of Elkhorn. The parties expressly designed

      4
         In their supplemental brief, the Plaintiffs assert that other provisions of the
Elkhorn CBA provided that Elkhorn could only terminate them for cause, making the
distinction between the Omaha CBA and the Elkhorn CBA irrelevant. Though the
Plaintiffs may be correct that, prior to annexation, Elkhorn only could have terminated
them for cause, we believe the more specific severance provision in the Elkhorn CBA
governs the circumstances at hand. See Panwitz v. Miller Farm-Home Oil Serv., Inc.,
422 N.W.2d 63, 66 (Neb. 1988) (“If the apparent inconsistency is between a clause
that is general and broadly inclusive in character and one that is more limited and
specific in its coverage, the latter should be generally held to operate as a modification
and pro tanto nullification of the former.” (quotation omitted)). Moreover, were we
to agree with the Plaintiffs’ interpretation of the Elkhorn CBA, the Elkhorn CBA
would have prohibited Omaha from terminating the Plaintiffs except “for cause” and
still would have required Omaha to pay the Plaintiffs severance payments in the event
of a termination. The Plaintiffs’ interpretation is therefore illogical, fails to interpret
the Elkhorn CBA as a whole, and fails to interpret the terms of the Elkhorn CBA in
their proper context. See Sheet Metal Workers International Ass’n, Local No. 3 v.
Lozier Corp., 255 F.3d at 551 (citing Mastro Plastics Corp. v. NLRB, 350 U.S. 270,
281 (1956)).

                                           -8-
the provision to apply only in the event of an “annexation, consolidation or merger”
that would cause Elkhorn to cease existing as “an independent political subdivision
of the State of Nebraska”; to bind any city that annexed Elkhorn; and, in the event of
an annexation, to provide the Plaintiffs with rights to severance payments if they were
terminated or “the terms and conditions” of their employment substantially changed.
The parties did not, however, reserve the Plaintiffs any rights to continued
employment upon an annexation. Rather, in the event of an annexation, the provision
specifically limited the Plaintiffs from claiming additional rights to employment apart
from those for which the severance provision provided. Although the Plaintiffs now
discount that limiting language as “nonsensical and inoperative,” the language is
specific and clear, and Nebraska law states that “[a] contract written in clear and
unambiguous language is not subject to interpretation or construction and must be
enforced according to its terms.” State ex. rel Bruning v. R.J. Reynolds Tobacco Co.,
746 N.W.2d 672, 679 (Neb. 2008). For those reasons, we agree with the Plaintiffs’
own statement “that the Elkhorn CBA . . . did not, and could not, form the basis of
[their] property right claim.” Thus, we reject the Plaintiffs’ assertion that the
Defendants deprived them of property without due process because we find that the
Plaintiffs’ had no legitimate claim of entitlement to employment with Omaha.

                                         III.

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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