dissenting.
I would affirm the judgment dismissing Pletka’s complaint, not because of any flaw in the Court’s qualified-immunity analysis, but simply because Pletka’s due-process rights have not been violated.
The Court’s opinion appears to be completely logical. Its reasoning consists of the following steps: (1) In Iowa, prisoners in the general population have a “liberty interest” in not being transferred to more restrictive conditions of confinement, either for administrative reasons, as was the case in Hayes v. Lockhart, 754 F.2d 281 (8th Cir.1985), or for disciplinary or punitive reasons, see Wolff v. McDonnell, 418 U.S. 539, 565-66, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974); (2) When Texas transferred Pletka to the general population, it acted as the agent of Iowa under the Interstate Corrections Compact, see Iowa Code § 247.2 (Supp.1991); and, therefore, (3) Pletka may not be re-transferred into punitive segregation without a new due-process hearing.
The fault in this analysis lies, I believe, in the third step, or perhaps in the transition from the second to the third step. I accept the fact that the case must be treated exactly as if Iowa, rather than its agent, Texas, had released Pletka into the general population. The true basis of the Court’s holding, however, is not the basic rule that prisoners in the general population have a “liberty interest” in staying there, but rather that Pletka’s release into the general population was a sort of pardon — a complete satisfaction of the penalty that had been imposed upon him for a disciplinary offense before his transfer to Texas — even though there was still some time to run on that penalty. Thus, although the Court states the case as if it involved procedural due process (“Iowa ... placed Pletka back into administrative segregation without any form of due process hearing,” ante at 917), it is really based on a substantive holding. A prisoner who is returned to the general population before serving all of his disciplinary time, the Court says, has paid his punitive debt completely. The original sanction has been satisfied, and no new sanction may be imposed absent a new offense and a new due-process hearing. In Pletka’s case, of course, no one claims that a new offense has been committed. Accordingly, there is no issue that a new due-process hearing could address. Pletka has served his time, and he has a federal constitutional right to remain in the general population.
The trouble is that the Court cites no law whatever, and I know of none, to support such an extraordinary conclusion. Hayes *921involved administrative segregation, not punitive. A new hearing meant something in Hayes — it could consider whether, for security reasons, for the inmate’s own good, or for some legitimate administrative purpose, Hayes should be returned to more restrictive conditions of confinement. Here, a hearing would mean nothing. Plet-ka has already received his hearing, but on the Court’s reasoning the consequences of that hearing have been fully exhausted. Hayes holds only that the receiving state is the agent of the sending state. It does not hold that release into the general population of an inmate who has been subjected to disciplinary sanctions is a complete satisfaction of the disciplinary penalty. If there were a statute, a regulation, or even a prison practice in Iowa to this effect, I could understand the Court’s result. But there is no such law or practice — none, at least, that either the Court or the parties have identified. And surely no one would contend that the Due Process Clause of the Fourteenth Amendment, of its own force, creates any such entitlement.
The Court suggests, ante at 919 n. 6, that a new hearing, in advance of returning Pletka to punitive detention, could conceivably serve some purpose. The suggestion is somewhat speculative, not based on anything concrete in the record or on any argument made by the parties. The suggestion seems also to contradict the Court’s main thesis, that Pletka’s release into the general population while in Texas completely satisfied his punitive “sentence.” Even if the Court’s suggestion has merit, I would still affirm this judgment. The bases of the Court’s reasoning, and the ingenuity it shows in developing possible reasons for a new hearing, demonstrate, at the very least, that the case is not sufficiently clear to survive a qualified-immunity defense. The Court’s holding today goes significantly beyond Hayes, in which the kind of hearing of which the inmate was deprived was clear. I think it places too great a burden on prison officials to require them to anticipate such a legal development, especially when the result may be a personal judgment against them for money damages.
For these reasons, I conclude that Pletka has received all the process he is due.1
ORDER
Oct. 28, 1991.
The petition for rehearing with suggestion for rehearing en banc has been considered by the court and is granted. The opinion and judgment of this court filed on September 10, 1991, are vacated.
The parties are directed to file supplemental briefs not to exceed fifteen pages in length.
This case will be argued, January 6, 1992, at 9:00 a.m., in St. Louis, Missouri.
. I agree with the Court that footnotes can be important.