Judy Shepard v. Pete Geren

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1957
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Sean W. Mulvenon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Reed Greenwood, Individually; *
Thomas E. Smith, Official Capacity as *
Dean of the College of Education and *
Health Professions, *
*
Appellees. *
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Submitted: January 12, 2011
Filed: June 10, 2011
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Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Sean Mulvenon sued Reed Greenwood, individually and in his official capacity
as Dean of the College of Education and Health Professions of the University of
Arkansas (COEHP),1 alleging violations of procedural and substantive due process
1In March 2010, Tom Smith succeeded Greenwood as Dean of the COEHP and
replaced Greenwood as the sole official-capacity defendant.

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under the Fourteenth Amendment. The district court2 dismissed Mulvenon's complaint
with prejudice. Mulvenon contends that the court erred in concluding that he lacked
a protected property interest in his claim that he possessed a legitimate expectation of
continued employment as the holder of an endowed position in the COEHP. For the
following reasons, we affirm.
I. Background
In a letter dated August 16, 2004 ("Appointment Letter"), Greenwood offered
Mulvenon a position as the holder of the George M. and Boyce W. Billingsley Chair
for Educational Research and Policy Studies ("Billingsley Chair") in the COEHP's
Department of Educational Leadership, Counseling, and Foundations. At that time,
Mulvenon worked as a tenured faculty member in the COEHP. The Appointment
Letter, attached to Mulvenon's complaint, indicated that Mulvenon's appointment
would be "for a five-year period renewable on an annual basis beginning on August
16, 2004[,] and ending on May 10, 2009." The Appointment Letter further stated that
at the conclusion of Mulvenon's service in the Billingsley Chair position, he would
return to his tenured faculty position at his previous salary, "together with any annual
merit increases earned . . . plus any other permanent state-funded adjustments." The
Appointment Letter also "incorporated as part of the appointment to this position" an
attached document entitled "Guidelines for Annual and Fifth-Year Reviews of the
George M. and Boyce W. Billingsley Chair for Educational Research and Policy
Studies" ("Reappointment Guidelines").
The Reappointment Guidelines, also attached to Mulvenon's complaint, detailed
the process for reviewing Mulvenon's performance in the Billingsley Chair position
on an annual basis and at the end of his five-year term. In the fifth year of his term,
Mulvenon could indicate whether he was interested in seeking reappointment. If so,
2The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
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Mulvenon would meet with the department head to discuss the upcoming five-year
review. Thereafter, the department head would assemble "a review committee of
faculty members external to the University of Arkansas," who would "review and
evaluate the chair holder's performance and provide recommendations regarding
reappointment to the chair."
To facilitate the external review committee's task of evaluating his performance,
Mulvenon would prepare a statement describing his responsibilities, major
accomplishments, and the effect of these accomplishments. Each member of the
external review committee would prepare a letter assessing Mulvenon's performance
in the Billingsley Chair position and "forward their letter[s] of review to the
department head," who then had the option of interviewing each reviewer. Mulvenon
would also receive a copy of these letters, and the department head would meet with
Mulvenon to discuss the contents of the letters. The Reappointment Guidelines
provided that "[t]he letters of review, and any written response to the letters by the
chair holder, [would] be used to consult with the dean regarding reappointment."
Finally, the Reappointment Guidelines indicated that the department head and
the dean of the COEHP, Greenwood, would make a final decision regarding
reappointment:
Reappointment or alternative decisions (e.g., reappointment for a shorter
term, or no reappointment) shall be the decision of the department head
on consultation with the dean and should be based on the letters of
review from the external committee. The final decision on reappointment
will be made by the Dean of the College of Education and Health
Professions after reviewing all submitted written materials and
consulting with the Head of the Department of Educational Leadership,
Counseling and Foundations and the incumbent chair holder.
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Mulvenon accepted his appointment to the Billingsley Chair position in a letter dated
August 24, 2004.
As Mulvenon approached the end of his five-year term in 2009, he expressed
his interest in seeking reappointment to the Billingsley Chair position. Thus, COEHP
officials began the evaluation process described in the Reappointment Guidelines. At
Mulvenon's request, the department head, Michael Daugherty, recused himself from
the reappointment process.
Three external faculty members—Dr. Earl Cheek of Louisiana State University,
Dr. William Rayens of the University of Kentucky, and Dr. David Shannon of
Auburn University—reviewed Mulvenon's personal statement and submitted letters
of review. Dr. Cheek and Dr. Shannon provided very positive evaluations of
Mulvenon and recommended that he be reappointed. Dr. Rayens was somewhat
ambivalent—expressing reservations with Mulvenon's research and teaching
performance but noting that Mulvenon had improved the reputation of the university
locally and nationally. Ultimately, Dr. Rayens neither recommended nor advised
against Mulvenon's reappointment. Mulvenon submitted a letter responding to each
of the three external reviewer's letters. Greenwood and Associate Dean John Murry
met with Mulvenon on May 8, 2009.
In a letter dated May 10, 2009, Greenwood notified Mulvenon that he would
not be reappointed for a new term in the Billingsley Chair position. In the letter,
Greenwood indicated that he had "carefully considered the three external letters of
review." He also stated that he was "familiar with [Mulvenon's] publications and [his]
teaching record." Based on Greenwood's "professional academic judgment," he had
determined that Mulvenon "[had] not fulfilled the scholarship and teaching
expectations of the Billingsley Chair as set forth in the Guidelines for
Reappointment." Greenwood then elaborated on Mulvenon's shortcomings in both
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areas. Mulvenon returned to his prior tenured faculty position in the COEHP at the
conclusion of his five-year term in the Billingsley Chair position.
Mulvenon filed suit in the district court against Greenwood, in his individual
and official capacities, alleging violations of his rights to procedural and substantive
due process for not reappointing him to the Billingsley Chair position. In response,
Greenwood filed a motion to dismiss, contending that Mulvenon's complaint failed
to establish any constitutionally protected property or liberty interests. The district
court granted the motion to dismiss all of Mulvenon's claims. On the individual-
capacity claims, the court concluded that Mulvenon's complaint failed to establish any
constitutional violation because (1) he lacked a property interest in being reappointed
to the Billingsley Chair position, and (2) his non-reappointment did not implicate any
liberty interests. The court also dismissed Mulvenon's official-capacity claims because
it concluded that his complaint had failed to allege facts sufficient to establish any
constitutional violations.
II. Discussion
On appeal, Mulvenon argues that he had a legitimate expectation of continued
employment in the Billingsley Chair position and therefore had a property interest
entitled to the protections of due process. According to Mulvenon, his legitimate
expectation of reappointment stems from the Reappointment Guidelines, which state
that the reappointment decision "should be based on the letters of review from the
external committee." Mulvenon argues that under Arkansas law, this language means
that the decision must be based on the letters. Because the letters from Dr. Cheek, Dr.
Rayens, and Dr. Shannon were all favorable, Mulvenon contends that he "acquired a
legitimate expectation of (continued) employment as the Billingsley Chair" when he
received those letters. Mulvenon maintains that the Reappointment Guidelines did not
allow Greenwood to substitute his judgment for that of the external review committee.
Because Mulvenon's complaint shows that he had a property interest, Mulvenon
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asserts that he alleged a violation of his constitutional right to due process, and the
district court erred in dismissing his complaint.
In response, Greenwood retorts that the district court properly dismissed
Mulvenon's claims because the complaint did not allege a violation of a constitutional
right. Greenwood maintains that Mulvenon lacked a property interest in being
reappointed to the Billingsley Chair position because he did not have a legitimate
claim of entitlement to being reappointed. Greenwood contends that the plain
language of the appointment letter and the Reappointment Guidelines vested him—the
Dean of the COEHP—with the sole discretion to determine whether to reappoint
Mulvenon. The external review letters were part of the reappointment process, but
they were not binding on Greenwood and, therefore, could not create a legitimate
claim of entitlement. Because "Mulvenon failed to allege facts stating a constitutional
deprivation of any property or property interests," Greenwood asserts that Mulvenon
necessarily failed to state a claim for a procedural or substantive due process violation.
We review de novo the district court's grant of a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, accepting the facts alleged in the complaint as
true and granting all reasonable inferences in favor of the nonmoving party.
Stufflebeam v. Harris, 521 F.3d 884, 886 (8th Cir. 2008). In addressing a motion to
dismiss, "[t]he court may consider the pleadings themselves, materials embraced by
the pleadings, exhibits attached to the pleadings, and matters of public record." Mills
v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010) (citing Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (noting that the same standard
applies to a Rule 12(b)(6) motion to dismiss)).
As a preliminary matter, we note that Mulvenon only argues that he had a
legitimate expectation of reappointment to the Billingsley Chair position. In other
words, he only argues that he has a protected property interest and not a liberty
interest. See, e.g., Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899
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(8th Cir. 1994) ("A person must have a legitimate claim of entitlement to his or her
employment to have a property interest in it."). Mulvenon has not challenged the
district court's conclusion that he lacked a protected liberty interest. Cf. id. ("An
employee's liberty interests are implicated where the employer levels accusations at
the employee that are so damaging as to make it difficult or impossible for the
employee to escape the stigma of those charges."). Similarly, he has not challenged
the district court's dismissal of his official-capacity claims. As a result, Mulvenon has
waived these arguments. See Fair v. Norris, 480 F.3d 865, 869 (8th Cir. 2007)
(finding that appellant "waived any arguments related to her other claims by failing
to raise them in her opening brief").3 Accordingly, we will only consider whether
Mulvenon had a protected property interest to support his due process claims against
Greenwood, in his individual capacity.
A. Procedural Due Process Claim
"To establish a violation of procedural due process, a plaintiff must show that
he has been deprived of a constitutionally protected life, liberty or property interest."
Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1114 (8th Cir. 2009). As noted
supra, Mulvenon does not challenge the district court's conclusion that he lacked a
constitutionally protected liberty interest. Thus, if Mulvenon lacks a constitutionally
protected property interest in being reappointed, he cannot establish a due process
violation. See Forrester v. Bass, 397 F.3d 1047, 1054 (8th Cir. 2005) ("Only if we
find a protected interest do we examine whether the deprivation of the protected
interest was done in accordance with due process."); Singleton v. Cecil, 176 F.3d 419,
424 (8th Cir. 1999) (en banc) (stating that "the possession of a protected life, liberty,
or property interest is a condition precedent to any due process claim" (quotation,
alterations, and citation omitted)).
3In his reply brief, Mulvenon concedes that he may have "grossly understated
the issues on this appeal." He nonetheless contends—incorrectly—that the qualified-
immunity and liberty-interest issues "were subsumed within" the issue of whether he
had a legitimate claim of entitlement to reappointment.
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"A person must have a legitimate claim of entitlement to his or her employment
to have a property interest in it." Winegar, 20 F.3d at 899 (citing Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577 (1972)). Whether the employee had a
legitimate claim of entitlement—and thus, a constitutionally protected property
interest—depends on state law and the terms of his employment. Kozisek v. Cnty. of
Seward, Neb., 539 F.3d 930, 937 (8th Cir. 2008). However, a plaintiff's "subjective
and 'unilateral expectation' that [he] had 'a legitimate claim of entitlement'" to
continued employment in the same position is insufficient to create a property interest.
Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 803 (8th Cir. 2004) (quoting Roth,
408 U.S. at 577).
Here, Mulvenon does not base his claim upon Arkansas contract law. Instead,
he argues that the terms used in the Billingsley Chair extension process created a
property interest under federal law, protected by federal due process, to reappointment
to the position. We disagree. The Appointment Letter makes no mention of extending
Mulvenon's employment as the holder of the Billingsley Chair beyond the initial five-
year period. The letter indicates that his five-year term would be subject to evaluation
and renewal annually, but it explicitly states that his term would end on May 10, 2009.
Mulvenon would then return to his previous position as a tenured faculty member. The
only mention of Mulvenon's possible reappointment appears in the Reappointment
Guidelines, which describe a multi-step process for determining how Mulvenon would
be evaluated for consideration of reappointment to the Billingsley Chair position,
should he elect to seek reappointment.
Throughout this process, several individuals—the external review committee,
the department head, and the dean—could exercise their discretion and judgment to
evaluate whether Mulvenon should be reappointed. As we have recognized,
"discretionary policies . . . do not bestow upon individuals protected property
interests." Habhab v. Hon, 536 F.3d 963, 968 (8th Cir. 2008) (quotation, alterations,
and citation omitted). At most, the terms of Mulvenon's employment provided a
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possibility that he would be reappointed. This possibility, however, falls far short of
creating a constitutionally protected property interest.
Nevertheless, Mulvenon contends that he acquired a property interest—a
legitimate claim of entitlement to reappointment—at the moment the external
reviewers gave him (mostly) positive evaluations. In effect, he attempts to fashion a
property interest out of the reappointment process itself. We have previously held that
the existence of procedures governing one's continued employment cannot, standing
alone, create a property right to continued employment. Stow v. Cochran, 819 F.2d
864, 866–68 (8th Cir. 1987). Interestingly, the Tenth Circuit rejected an argument
nearly identical to Mulvenon's in Bunger v. University of Oklahoma Board of Regents,
95 F.3d 987, 990–91 (10th Cir. 1996). There, two untenured professors argued "that
the procedural guidelines in the Faculty Handbook effectively created a property
interest in reappointment, of which they could be divested only according to the terms
of the specified procedures." Id. at 990. The court explained the flaw in this argument
as follows:
This tautological argument fails because it attempts to construct a
property interest out of procedural timber, an undertaking which the
Supreme Court warned against in Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
"The categories of substance and procedure are distinct. . . . 'Property'
cannot be defined by the procedures provided for its deprivation any
more than can life or liberty." Id. at 541, 105 S. Ct. at 1493. The
university's promise that it would follow certain procedural steps in
considering the professors' reappointment did not beget a property
interest in reappointment. See Colburn v. Trustees of Indiana Univ., 973
F.2d 581, 589–90 (7th Cir. 1992) (holding that statements in handbooks
and appointment contracts that untenured university faculty would be
judged according to certain criteria and procedures did not create a
property interest in reappointment).
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Id. at 990–91. In short, Mulvenon cannot rely on the procedures governing his
possible reappointment to create a property interest where none otherwise existed.
Because Mulvenon lacked a constitutionally protected interest, he cannot
sustain his procedural due process claim. See Forrester, 397 F.3d at 1054. Thus, the
district court correctly dismissed his claim.
B. Substantive Due Process Claim
As with Mulvenon's procedural due process claim, "the possession of a
protected life, liberty, or property interest is a condition precedent" to his substantive
due process claim. See Singleton, 176 F.3d at 424 (quotation, alterations, and citation
omitted). As explained supra, Mulvenon has not challenged the district court's
conclusion that he lacked a constitutionally protected liberty interest, and he cannot
show that he had a constitutionally protected property interest. Therefore, the district
court correctly dismissed Mulvenon's substantive due process claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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