Tommy D. Hopkins v. John L. Saunders

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No. 96-1174

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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.*

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Submitted: June 10, 1996

Filed: August 23, 1996

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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

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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."

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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

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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

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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.

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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 . . . .

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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

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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

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reinstatement).

A true copy.

Attest:

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

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