                      United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-4095
                                      ___________

Calvin L. Larson,                          *
                                           *
       Plaintiff - Appellant,              *
                                           * Appeal from the United States
       v.                                  * District Court for the
                                           * District of Minnesota.
City of Fergus Falls, et al.,              *
                                           *
       Defendants - Appellees.             *
                                      ___________

                                 Submitted: June 15, 2000

                                     Filed: October 12, 2000
                                      ___________

Before LOKEN, ROSS, and HANSEN, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

        Calvin L. Larson served for many years as a City of Fergus Falls employee,
rising to the position of Assistant Public Works Director. The City demoted Larson to
Maintenance Supervisor in early 1996. The City suspended Larson in December and
terminated him on January 2, 1997. Larson sought certiorari review of his discharge
in the Minnesota Court of Appeals. On October 14, 1997, that Court reversed the
City’s discharge decision “because the city failed to follow the terms of the labor
agreement and provide Larson with written notice stating the cause for his dismissal.”
Larson v. City of Fergus Falls, No. 97-399, 1997 Minn. App. Lexis 1140. On January
5, 1998, the City gave Larson written notice of the reasons for his termination in a letter
that referred to the Minnesota Court of Appeals decision.

       Larson also commenced this damage action in the district court, alleging that the
City breached the relevant collective bargaining agreement, a state law claim, and
violated his constitutional right to procedural due process, a federal law claim under 42
U.S.C. § 1983. In January 1999, long after the Minnesota Court of Appeals decision,
the district court1 granted Larson summary judgment on his breach of contract claim
but awarded only nominal damages of $1.00. The court granted summary judgment to
the City dismissing Larson’s due process claim. Larson appeals, arguing the district
court erred in awarding only nominal damages and in dismissing his § 1983 due process
claim. We affirm.

                          I. The Breach of Contract Claim.

       In resolving Larson’s state law contract claim, the district court held that the
Minnesota Court of Appeals decision conclusively established a breach of the
collective bargaining agreement, namely, terminating Larson without proper notice.
However, the court ruled that Larson could only recover nominal damages because
“jurisdictional limitations bar this Court from reviewing whether the City had just cause
to terminate Larson,” and therefore the record “conclusively demonstrates that Larson
would not have retained his employment had he received written notice of the reasons
for his termination according to the terms of the contract.” Larson appeals that ruling.

       Under Minnesota law, judicial review of a local public employer’s discretionary
decision to terminate an employee is obtained by petitioning the Minnesota Court of
Appeals for a writ of certiorari. See Dietz v. Dodge County, 487 N.W.2d 237 (Minn.


      1
        The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.

                                           -2-
1992). A terminated employee who has not sought certiorari review may not bring a
state law breach-of-contract damage action for wrongful termination in either a state
or a federal trial court. See Willis v. County of Sherburne, 555 N.W.2d 277, 279-82
(Minn. 1996); Charchenko v. City of Stillwater, 47 F.3d 981, 984 (8th Cir. 1995). This
case differs from Willis and Charchenko in that Larson first sought certiorari review
and obtained relief from the Minnesota Court of Appeals. To our knowledge, no
reported Minnesota decision has considered whether a terminated public employee may
recover breach-of-contract damages in a state trial court after completing certiorari
review in the Minnesota Court of Appeals. The district court was unwilling to preclude
such a damage action. We are inclined to disagree, believing that the Supreme Court
of Minnesota would hold that certiorari review preempts all breach-of-contract actions,
and therefore the certiorari remedy is exclusive. But we need not decide this
unresolved issue of state law because the City has not appealed the award of nominal
damages, and there are narrower grounds upon which to affirm that award.

       The district court limited Larson to nominal damages because the Minnesota
Court of Appeals did not address whether the City lacked just cause to terminate, and
that Court has exclusive jurisdiction under state law to decide the just-cause issue. We
agree that, even if the Supreme Court of Minnesota would allow a post-certiorari
damage action, a federal court applying Minnesota law has no “jurisdiction” to award
damages on the ground that the City lacked just cause to terminate, unless the
Minnesota Court of Appeals has decided that issue in favor of the terminated employee.
Because this state law doctrine is couched in jurisdictional terms, Larson argues it
violates the principle that state law may not restrict federal court jurisdiction. Whatever
the proper bounds of that principle, it has no application here. The district court had
original jurisdiction over Larson’s § 1983 claim. His breach-of-contract claim is in
federal court by reason of the district court’s supplemental jurisdiction. See 28 U.S.C.
§ 1367. State law governs this contract claim. Therefore, we must follow Dietz and
Willis in resolving that claim.


                                           -3-
        Larson also argues on appeal an issue the district court posed but did not answer
-- in addition to nominal damages, should the court have awarded Larson damages for
lost wages during the period in which the Minnesota Court of Appeals ruled he had not
been provided the contractually required notice? The Minnesota Court of Appeals
reversed Larson’s termination without clarifying whether he was thereby immediately
reinstated, and whether the City could remedy the defect with a new notice or must
commence a new discharge proceeding. The City responded with its January 1998
letter giving reasons for the termination. Larson argues that the letter “was not
grievable and not appealable and cannot be used as an admission of grounds for
termination.” But these are simply his conclusory assertions, and he avoided available
procedures to test their validity. He did not file a new grievance arguing, as he does
now, that the January 1998 letter did not comply with the Minnesota Court of Appeals
ruling.2 He did not return to the Minnesota Court of Appeals with a motion or petition
contesting the City’s response to the Court’s reversal, and seeking additional remedies
such as reinstatement and back pay. Indeed, he did not even informally demand
reinstatement, back pay, and the resumption of his salary.

       The Minnesota Court of Appeals was the proper tribunal to resolve disputes over
the import of its initial reversal. That Court had the power to issue a writ of mandamus
compelling the City to abide by its certiorari decree. See State ex rel. Spurck v. Civil
Serv. Bd., 32 N.W.2d 583, 589 (Minn. 1948). Moreover, the collective bargaining
agreement provided a procedure for challenging the July 1998 letter, and Larson was
required to exhaust that contractual remedy. See Stephens v. Board of Regents of
Univ. of Minn., 614 N.W.2d 764, 773 (Minn. 2000). In these circumstances, even if
a terminated public employee may bring a breach-of-contract action in a trial court after


      2
       Larson attempted to grieve his discharge in January 1997, but the City and the
union representing its supervisory employees rejected the grievance on the ground that
Larson was not covered by the collective bargaining agreement. The Court of Appeals
disagreed, holding that the agreement “clearly covers Larson.”

                                          -4-
completing certiorari review in the Minnesota Court of Appeals, the district court
properly limited Larson to nominal damages in this collateral lawsuit.

                             II. The Due Process Claim.

       A public employee may not be deprived of a property interest in continued
employment “except pursuant to constitutionally adequate procedures.” Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). The City concedes that Larson had
a property interest in continued employment. Due process requires “some kind of a
hearing” prior to the termination. If a full post-termination hearing is available, the pre-
termination hearing may be “something less than a full evidentiary hearing” but should
serve as an “initial check against mistaken decisions.” Id. at 542, 545-46. Larson
argues he was denied both pre-termination and post-termination due process. These
are issues of federal constitutional law.3 We review the grant of summary judgment de
novo. See Flath v. Garrison Pub. Sch. Dist. No. 51, 82 F.3d 244, 246 (8th Cir. 1996).

       A. The Pre-Termination Process. Larson was suspended in mid-December
1996. He testified that the reasons given for the suspension were “negative attitude and
resentment.” During the suspension, the City continued its investigation of Larson’s
job performance and uncovered additional evidence he had harassed City employees
and failed to carry out the functions of his job. On December 30, Larson’s immediate
supervisor, Public Works Director Donald Eisenhuth, met with Larson and informed
him that he should resign or the City would terminate him. Larson testified that the
reason given by Eisenhuth at this meeting was Larson’s “management style.” On


       3
       As the district court recognized, the decision of the Minnesota Court of Appeals
did not resolve the due process issue. That Court decided Larson did not receive a
written notice of dismissal required by the collective bargaining agreement. A notice
required by contract is not necessarily required as a matter of federal constitutional law.
See Schleck v. Ramsey County, 939 F.2d 638, 642 n.4 (8th Cir. 1991).

                                            -5-
January 2, 1997, Larson submitted his resignation. When he rescinded the resignation
some days later, the City sent him a formal notice of termination offering him five days
“to request in writing the reasons for your termination.” Larson made no such request.

        Larson contends that the December 30 meeting with Eisenhuth failed to meet the
minimal requirements of pre-termination due process because he was not given advance
notice of the charges against him, he was not told what would occur at the meeting, he
was not told enough to provide a meaningful basis on which he could respond, and the
meeting was only with Eisenhuth and the City Engineer, who were not the final
decision makers.4 We disagree. At the pre-termination stage, “[t]he tenured public
employee is entitled to oral or written notice of the charges against him, an explanation
of the employer’s evidence, and an opportunity to present his side of the story.”
Loudermill, 470 U.S. at 546. “The hearing does not have to precede the termination
decision, but only must precede the termination of benefits. It does not have to be a
formal hearing; informal meetings with supervisors are sufficient.” Schleck, 939 F.2d
at 641 (citations and quotation omitted); accord Riggins v. Board of Regents of Univ.
of Neb., 790 F.2d 707, 711 (8th Cir. 1986). Nor is the employer required to provide
all the details of the charges against the employee. Schleck, 939 F.2d at 642.

       Throughout 1996, Larson was repeatedly criticized for his negative and angry
attitude on the job. He knew that was the basis for his mid-December suspension. At
the December 30 meeting, Eisenhuth told Larson he was being terminated for his
management style and gave Larson three days to decide whether to voluntarily resign
or be terminated. When Larson chose to voluntarily resign, the City understandably
provided no further pre-termination process. Given the post-termination process
available -- the collective bargaining agreement grievance procedures and judicial



      4
      City Administrator James Nitchals testified that he relied on Eisenhuth’s
recommendation in deciding to terminate Larson.

                                          -6-
review by writ of certiorari -- we agree with the district court that the City provided
Larson constitutionally adequate pre-termination process.

       B. The Post-Termination Process. Although the grievance Larson filed was
unsuccessful, he obtained post-termination relief by filing a writ of certiorari in the
Minnesota Court of Appeals, which reversed his termination because the City failed to
provide the written notice required by the collective bargaining agreement. Though
successful, Larson contends this post-termination process was constitutionally
inadequate. First, he argues we should ignore the judicial review of his discharge
because the City must afford him procedural due process. This is a remarkably
misguided contention. The right to a judicial hearing is the classic protection provided
by the Due Process Clause against arbitrary deprivations of life, liberty, or property.
With the rise of administrative adjudicatory proceedings, the Supreme Court has held
that due process requires “some form of hearing,” not necessarily judicial, but timely
and adequate as a matter of federal law to accommodate the competing interests
involved. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-37 (1982).
The Court has never suggested that judicial review of an adverse administrative
decision does not “count” in determining whether due process was afforded. Indeed,
in Loudermill, the Court explicitly referred to “a full administrative hearing and judicial
review” as the post-termination procedures that warranted a less elaborate pre-
termination process. 470 U.S. at 545 (emphasis added).

       Second, Larson argues he was denied post-termination due process because the
City’s January 1998 letter stating reasons for his termination “was neither a personal
action he could grieve, nor an official action of the city for which a writ [of certiorari]
could have been sought.” But these are issues of contract and state law. After he
received the January 1998 letter, Larson did nothing to enforce or take advantage of the
favorable Minnesota Court of Appeals decision. He did not file a new grievance
challenging the City’s belated attempt to comply with the collective bargaining
agreement’s notice requirement. He did not petition the Minnesota Court of Appeals

                                           -7-
for a writ of mandamus to compel the City to take a different action in the wake of that
Court’s decision. As a matter of federal law, the requirement of adequate post-
termination due process might include some procedural mechanism by which Larson
could enforce the Minnesota Court of Appeals reversal against a reluctant employer.
But those procedures appear to have been available, both in the collective bargaining
agreement and in the Minnesota law of certiorari. Larson failed to invoke those
procedures. “Due process in this context does not require more.” Riggins, 790 F.2d
at 712.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




                                          -8-
