                                   ___________

                                   No. 96-1174

                                   ___________

Tommy D. Hopkins,                      *
                                       *
           Plaintiff/Appellee,         *
                                       *
     v.                                *
                                       *     Appeal from the United States
John L. Saunders, Kyle Vickers,        *     District Court for the
                                       *     Western District of Missouri.
           Defendants/Appellants,*
                                       *
Charles Ausfahl,                       *
                                       *
           Defendant,                  *
                                       *
Roy Temple, Beth M. Wheeler,           *
                                       *
           Defendants/Appellants.*
                               ___________

                    Submitted:     June 10, 1996

                          Filed:   August 23, 1996
                                   ___________

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
      DOTY,* District Judge.
                               ___________


WOLLMAN, Circuit Judge.


     After Tommy D. Hopkins was terminated from his job as Director of the
Division of Grain Inspection and Warehousing (the Division) of the Missouri
Department of Agriculture (the Department), he brought this 42 U.S.C. §
1983 action against John L. Saunders, Director of the Department, and
others, in their individual and official capacities, (collectively, the
officials), alleging that he had been dismissed in violation of his due
process rights and in




     *The HONORABLE DAVID S. DOTY, United States District
     Judge for the District of Minnesota, sitting by
     designation.
violation of Missouri's whistleblower statute.               The officials appeal the
district court's denial of their motion for summary judgment based on
qualified and Eleventh Amendment immunity.               We reverse and remand.


                                            I.


      Prior to the enactment of the 1976 United States Grain Standards Act,
the   Division was operating as a patronage organization.                       The Grain
Standards Act, and the regulations promulgated pursuant thereto, required
the   Division    to    instead       "employ    personnel   on    the    basis     of     job
qualifications    rather       than    political     affiliations."        7      U.S.C.     §
79(f)(1)(A)(ix);       see    also    7   C.F.R.    §    800.195(f)(2);    7      C.F.R.    §
800.196(g)(3)(ii).      In response to the Grain Standards Act, the governor
of Missouri issued an executive order in 1978 requiring the Department to
establish a formal merit system for its Division employees.                    Pursuant to
the executive order, the Department drafted a merit system plan (the plan),
which was submitted to the United States Department of Agriculture for
approval.     The plan established an Agriculture Personnel Review Board
(APRB) to conduct appeal hearings for Division employees.


      In 1979, the Missouri legislature enacted a state merit system law,
found in Chapter 36 of the Missouri Revised Statutes.              The law established
a Personnel Advisory Board (PAB) to hear appeals of merit system employee
dismissals.      Some merit employees were not covered by the law.                         For
example,    Chapter    36    expressly    excluded      division   directors      from     its
coverage.     See Mo. Rev. Stat. § 36.030.1(1).                On May 28, 1982, the
Department adopted the PAB dismissal procedures for most of its employees.
Division directors were among the employees the Department excluded from
coverage.   In a letter adopting the PAB procedures, the Department agreed,
however, to provide "substantially similar" appeal procedures for the
excluded employees pursuant to Missouri Revised Statute section




                                           -2-
36.390.8 if such procedures were legally required.1


      On June 10, 1994, Hopkins was terminated from his position as
division director by the Department without receiving prior notice or a
hearing.     He sought review of the decision by filing an appeal with the
APRB, the board established pursuant to the plan.   The Department responded
with a letter explaining that the plan was void and that the APRB no longer
existed.


      Hopkins then filed an appeal with the PAB.     The Department moved to
dismiss the appeal, arguing that Hopkins was specifically excluded from
Chapter 36 coverage and that he failed to state a claim under Missouri's
whistleblower law.      Hopkins urged the PAB to determine that it lacked
jurisdiction over his claim because the APRB still existed and was the
proper forum.    He requested that the matter be remanded to the APRB.   After
conducting a hearing to determine whether it had jurisdiction, the PAB
dismissed the case, holding that the Department had adopted the PAB's
appeal procedures for its regular employees but not for its division
directors.      It held that the plan's appeal procedures still applied to
dismissals of regular Division employees who were excepted from the PAB's
appeal procedures.     The Department agreed with the PAB's result but not
with its rationale and sought review in Missouri state court.        Hopkins
successfully moved to dismiss the appeal because the Department was the
prevailing party before the PAB.    Hopkins then filed the present complaint
in district court, seeking $6 million in compensatory damages, $3 million
in   punitive damages, and injunctive relief in the form of reinstatement.




        1
       Section 36.390.8 provides that non-merit agencies "shall
adopt dismissal procedures substantially similar to those provided
for merit employees."

                                     -3-
                                     II.


       We review the trial court's denial of a motion for summary judgment
de novo.     Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.
1992).    Summary judgment should be granted if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law.     Fed. R. Civ. P. 56(c).


A.   Qualified Immunity


       Under the doctrine of qualified immunity, government officials are
generally immune from suit in performing discretionary duties if "their
conduct does not violate clearly established statutory or constitutional
rights    of which a reasonable person would have known."          Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).      "[Q]ualified immunity is more than
a defense to suit; it grants government officials the right not to be
subject to the burden of trial at all."     Billingsley v. St. Louis County,
70 F.3d 61, 63 (8th Cir. 1995) (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)).      Whether a government official is entitled to qualified
immunity is a question of law.    Engle v. Townsley, 49 F.3d 1321, 1323 (8th
Cir. 1995).


       To prove that a clearly established right has been infringed upon,
a plaintiff must do more than allege that an abstract right has been
violated.     Runge v. Dove, 857 F.2d 469, 472 (8th Cir. 1988).    Instead, a
plaintiff "must make a `particularized showing' that a `reasonable official
would understand that what he is doing violated that right' or that `in the
light of preexisting law the unlawfulness' of the action was `apparent.'"
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).


       The officials argue that Hopkins did not have a constitutionally
protected right to continued employment.        They allege that even if the
initial plan applied to Hopkins as division




                                     -4-
director, Hopkins lost any entitlement to a right of continued employment
when the Department adopted the PAB's dismissal procedures.             Hopkins, on
the other hand, alleges that the Department adopted the PAB procedures for
its regular employees only -- thus, the appeal procedures established by
the plan are still in effect as to him.


       In denying the officials' claim of qualified immunity, the district
court agreed with Hopkins and held that "[w]hile the specific procedures
to be followed might have been debatable at the time of plaintiff's
termination, the fact that he was entitled to some due process was well
established[.]"     The district court pointed to the Grain Standards Act and
to the plan itself, which provided that employees of the Division be
employed on the basis of qualifications rather than political affiliations.
It held that a reasonable official should have been aware of the laws
governing the dismissal of employees and accordingly refused to grant
immunity.


       Contrary to the district court's conclusion, we find no violation of
clearly established law.        Hopkins clearly had no continued right of
employment under the state merit system law.             Although the Department
adopted the PAB's appeal procedures under Chapter 36 in 1982, both Chapter
36 and the Department itself expressly excluded division directors from
coverage.   Moreover, in Brown v. Personnel Advisory Bd., 879 S.W.2d 581,
584-85 (Mo. Ct. App. 1994), the Missouri Court of Appeals rejected a part-
time   employee's    argument   that   the   Grain   Standards   Act   required   the
Department to use the PAB procedures for all employee dismissals.


       Although the Department agreed to adopt similar dismissal procedures
for division directors if required by law under section 36.390.8, the
officials are nevertheless entitled to qualified immunity.         Missouri courts
have not yet decided whether section 36.390.8 confers a property interest
in continued employment or




                                        -5-
whether it merely gives employees a right to receive review procedures.
Thus, in Pace v. Moriarty, 83 F.3d 261, 263 (8th Cir. 1996), we held that
state officials were entitled to qualified immunity on an employee's claim
for damages based on section 36.390.8.      Likewise, the officials in the
present case cannot be held to have violated a clearly established right
when it is unclear whether section 36.390.8 bestows such a right.


     Having concluded that Hopkins had no clearly established right to
continued employment under the state merit system law, we turn to the
question whether he had such a right under the Department of Agriculture
merit plan.    After a careful reading of the plan itself, we are unable to
determine whether it grants Hopkins a property right.     Although the plan
states that it shall apply to "all offices, positions and employees" of the
Division, the general language in the plan indicates that it does not apply
to the division director but is to be used by the division director in
dealing with his subordinates.      In fact, under the plan, the division
director was a member of the APRB and would thus be entitled to hear his
own appeal.


     Clearly, there was confusion when Hopkins was dismissed as to whether
a division director had a continued right of employment, and the officials
are thus entitled to qualified immunity on Hopkins' due process claim.   See
Tubbesing v. Arnold, 742 F.2d 401, 406-07 (8th Cir. 1984) (commissioners
entitled to qualified immunity when it was not clear whether employee
policy manual establishing a property right in employment applied to
director).    Moreover, it was unclear whether Hopkins was subject to either
the plan's dismissal procedures or those provided pursuant to section
36.390.8.     Our review of the record leads us to the conclusion that the
only thing that is clear in this case is that the law was unsettled at the
time of Hopkins' dismissal.




                                     -6-
      The officials further claim that they are entitled to qualified
immunity on Hopkins' claim that he was denied a right to a post-termination
hearing under Missouri's whistleblower statute.         See Mo. Rev. Stat. §
          2
105.055.      The Missouri courts have not yet interpreted this statute.   The
district court determined, however, that the right to such a hearing was
clearly established by section 105.055 and thus denied the officials
qualified immunity.       We disagree.      The relevant issue for qualified
immunity purposes is whether the officials violated clearly established law
when they refused to grant Hopkins a hearing on his section 105.055 claim
before the APRB.      Because it was not clearly established that the plan's
appeal procedures applied to Hopkins as division director at the time of
his dismissal, the officials were not violating any clearly established
right when they denied him a hearing before the APRB.          See Warner v.
Graham, 845 F.2d 179, 182 (8th Cir. 1988) ("official may not be charged
with knowledge that his conduct was unlawful unless it has been previously
identified as such").      Accordingly, the officials are also entitled to
qualified immunity on this claim.


B.   Eleventh Amendment Immunity


      Because they were sued in their official capacities, the officials
also seek Eleventh Amendment immunity from Hopkins' request for money
damages.      The Eleventh Amendment prohibits a




      2
       Section 105.055(5) states, in relevant part:

               Any employee may file an administrative appeal
               whenever    the    employee    alleges    that
               disciplinary action was taken against the
               employee in violation of this section.     The
               appeal shall be filed with the state personnel
               advisory board; provided that the appeal shall
               be filed with the appropriate agency review
               board or body of nonmerit agency employers
               which have established appeal procedures
               substantially similar to those provided for
               merit employees . . . .

                                      -7-
citizen from suing a state for money damages in federal court.        Welch v.
Texas Dep't of Hwys. & Public Transp., 483 U.S. 468, 472 (1987).      Even when
a state is not named as a party to the action, the suit may still be barred
by the Eleventh Amendment.        A state official is entitled to Eleventh
Amendment immunity if immunity will "`protect the state treasury from
liability that would have had essentially the same practical consequences
as a judgment against the State itself.'"     Hadley v. North Ark. Community
Technical College, 76 F.3d 1437, 1438 (8th Cir. 1996), petition for cert
filed, 65 U.S.L.W. 3001 (U.S. June 24, 1996) (No. 95-2060) (citations
omitted); see also Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464
(1945) ("when the action is in essence one for the recovery of money from
the state, the state . . . is entitled to invoke is sovereign immunity from
suit even though individual officials are nominal defendants").


       In considering whether the officials were entitled to Eleventh
Amendment immunity, the district court noted that a critical factor was
whether any judgment "would ultimately come out of state funds or whether
a judgment could be paid out of non-state funds under the agency's
discretionary control."     The district court then refused to grant immunity,
holding that Hopkins had raised a valid claim as to whether any money
damages could be paid from non-state funds.


       Hopkins suggested that any monetary award could be paid out of the
grain inspection fee fund, which is separate from the state's general
revenue fund.   It is true that Missouri law requires grain inspection fees
to be kept in a separate account.     See Mo. Rev. Stat. § 411.151.   However,
under section 411.151.1 the account is considered part of the state
treasury.     In fact, section 411.151.2 authorizes the legislature to
transfer money from the general revenue fund to the grain inspection fee
fund   as   needed   "to   enable the director to continue operations[.]"
Furthermore, no expenditures could be made from the grain inspection fee
fund until




                                      -8-
after the money was appropriated by the legislature.                    § 411.151.1.
      The grain inspection fee fund is also subject to several restrictions
under state and federal law.            Under section 411.151.1, the money in the
fund is restricted "for the payment of salaries and expenses . . .
necessary for carrying out the provisions consistent with the grain
inspection and weighing services of [the Grain Warehouse Law.]"                    The Grain
Standards Act further forbids the Division from using "any moneys collected
pursuant to the charging of fees for any purpose other than the maintenance
of   the official inspection operation or other agricultural programs
operated     by   the   State   or     local    governmental     agency."      7   U.S.C.   §
79(f)(1)(A)(vi).
      In summary, section 411.151 makes clear that money in the grain
inspection fee fund is part of the state treasury.                    The money in the fund
is restricted by both state and federal law and cannot be expended without
appropriation by the state legislature.              See Dover Elevator Co. v. Arkansas
State Univ., 64 F.3d 442, 447 (8th Cir. 1995) (university which could not
spend money unless appropriated by state assembly was entitled to Eleventh
Amendment immunity); Hadley, 76 F.3d at 1441 (Eleventh Amendment immunity
extended to college when its daily operations were dependent upon state
treasury).    Because any judgment would ultimately come out of state funds,
the officials are entitled to Eleventh Amendment immunity.


                                     III.      Conclusion


      We   reverse      the   denial    of     immunity   for   the    officials   in   their
individual and official capacities, and remand Hopkins' claim for equitable
relief for further proceedings.              See Treleven v. Univ. of Minnesota, 73
F.3d 816, 819 (8th Cir. 1996) (state official may be sued in official
capacity for prospective injunctive relief); Grantham v. Trickey, 21 F.3d
289, 295 (8th Cir. 1994) (qualified immunity does not bar plaintiff's
equitable claim for




                                               -9-
reinstatement).


     A true copy.


           Attest:


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




                                   -10-
