O'Donnell, Philip v. Barry, Marion S.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 1998 Decided July 28, 1998

No. 97-7129

Philip A. O'Donnell,

Appellant

v.

Marion S. Barry, Jr., et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv02195)

Robert C. Seldon, argued the cause for appellant, with

whom Joanne Royce was on the briefs. Sarah L. Levitt

entered an appearance.

Donna M. Murasky, Assistant Corporation Counsel, ar-

gued the cause for appellees, with whom John M. Ferren,

Corporation Counsel, and Charles L. Reischel, Deputy Corpo-

ration Counsel, were on the brief. Jo Anne Robinson, Princi-

pal Deputy, entered an appearance.

Before: Wald, Sentelle and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Philip O'Donnell, a career officer in

the District of Columbia's Metropolitan Police Department,

has brought suit against the District of Columbia, the Mayor,

and the Chief of Police. O'Donnell claims that his transfer

from the job of Deputy Chief of Police for Investigative

Services to the (less desirable) job of head of the Depart-

ment's Property Division, followed by his demotion to the

rank of captain and the position of district patrol supervisor,

violated his free speech and due process rights under the

Constitution. The district court dismissed all of O'Donnell's

claims, except for one of the due process claims, as to which it

granted summary judgment; O'Donnell has appealed. We

affirm, except as to one element of O'Donnell's First Amend-

ment claim, which we believe requires further factual develop-

ment.

I. Background

O'Donnell's account of the events surrounding his transfer

and demotion is set out below. Many of the facts he recounts

are fiercely contested by the defendants; however, because

the plaintiff's claims must be taken as true on a motion to

dismiss, and the facts on the basis of which the district court

granted summary judgment are not contested, we assume

them to be true for purposes of the appeal as well.

O'Donnell began his career with the Police Department

almost three decades ago, in 1969. Over the years, he rose

through the ranks, until, in January 1995, he was appointed

D.C. Deputy Chief of Police for the Investigative Services

Bureau of the D.C. Police Department. This was a very

senior position; O'Donnell had authority over offices special-

izing in a range of high-profile criminal matters, including the

Homicide Branch (a fact whose importance will soon become

clear). In his new position, O'Donnell reported to the then

Assistant Chief of Police for the Patrol Services Bureau,

Larry Soulsby; Soulsby, in turn, reported directly to the

Chief of Police. O'Donnell avers in his complaint that he did

an excellent job during his tenure, making a number of

important reforms in the work of the offices under his

command.

The first signs of trouble came in May of 1995, when

Soulsby called O'Donnell into his office to discuss a newspa-

per article that reported that the Police Department had

failed to resolve a total of 123 unexplained deaths of African-

American women over a ten-year period. The article had

caused considerable public controversy, and Soulsby was "in-

censed" because he believed that the story had been leaked

by sources within the Police Department--specifically, by

Captain William J. Hennessy, the head of the Homicide

Branch, who was O'Donnell's immediate subordinate. O'Don-

nell denied that Hennessy was the source of the news report,

and added that the Homicide Branch was aware of the

unsolved homicides and was already conducting an investiga-

tion. According to O'Donnell, Soulsby "responded angrily

that the article was untrue and ordered that nothing should

be done to investigate the allegations." O'Donnell strongly

disagreed, noting that a serial killer might be involved; at a

routine staff meeting later in the day, the Chief of Police,

Fred Thomas, ordered an investigation.

Two months later, Thomas retired and Soulsby was ap-

pointed interim chief of police. The week after his appoint-

ment, O'Donnell sent him a long memorandum, titled "Setting

Priorities for the Metropolitan Police Department," which

ranked crime-related issues and proposed solutions. Soulsby

did not respond; O'Donnell claims that this was because

Soulsby wished to keep things quiet pending his confirmation

as Chief of Police by the D.C. City Council.

Soon afterwards, Soulsby told O'Donnell that Mayor Mar-

ion Barry was blocking O'Donnell's promotion to Assistant

Chief of Police (a promotion Soulsby had promised to secure).

Soulsby said that the Mayor believed that O'Donnell was a

racist; there was, O'Donnell avers, no reason that anyone

should believe that this was true. O'Donnell then spent

several months off the job because of a heart condition.

When he returned, in September 1995, he learned that he was

to be transferred to a less responsible position, that of

Commander of the Property Division. (O'Donnell did, howev-

er, retain his rank as Deputy Chief of Police.) Once again,

Soulsby said that the transfer was because Barry thought

O'Donnell was a racist.

Soulsby also reassigned Captain Hennessy to a less respon-

sible job, that of Night Supervisor. According to O'Donnell,

Soulsby then told the media in an off-the-record statement

that Hennessy had been transferred because he was under

investigation and likely to be indicted for violating the civil

rights of a black suspect. O'Donnell says that when Hennes-

sy learned of this claim he confronted Soulsby, who admitted

he had lied. Hennessy apparently taped this conversation,

and later told Soulsby that he had done so. As a result, the

two allegedly entered into a pact (which O'Donnell refers to

as the "Soulsby-Hennessy agreement") under which Hennes-

sy got a better job (but not in the Homicide Branch), in

exchange for silence, especially at Soulsby's pending confir-

mation hearing. Soulsby was confirmed as Chief of Police in

December of 1995.

In the meantime, according to O'Donnell, he was doing an

exemplary job of running the Property Division. In his new

position, he was in charge of the Department's facilities for

storing property and automobiles, and supervised personnel

at a police drug laboratory. O'Donnell wrote a number of

reports about problems at the Division, which Soulsby again

ignored; O'Donnell nevertheless implemented a number of

the suggestions that they contained.

On May 9, 1996, Soulsby made a speech at the District's

Ballou High School in which he claimed that the backlog of

123 unsolved cases involving African-American women had

only been discovered after O'Donnell and Hennessy had been

transferred out of their jobs. O'Donnell protested to Soulsby

orally and in writing, and ultimately said that he would retire.

Shortly thereafter, the news media learned about the

Soulsby-Hennessy agreement, and Hennessy's tape of his

conversation with Soulsby; subsequent news reports were

highly critical of the alleged agreement, and of Soulsby's

performance as Chief of Police. For example, on July 14,

1996, the CBS television program 60 Minutes ran a report

that said that the Police Department had performed poorly

under Soulsby and that (in O'Donnell's words) Soulsby had

"low credibility." The report also criticized the Mayor's poor

response to the scandal surrounding the Soulsby-Hennessy

agreement, and said that senior executives in the Homicide

Branch believed that the reassignment of Captain Hennessy

was unjustified and had damaged the Police Department.

There were many demands for Hennessy and Soulsby to

release the tape. Soulsby called on Hennessy to release the

tape, and Hennessy, somewhat inexplicably, declined to do so

until Soulsby released him from their agreement. Senior

D.C. officials (including a D.C. Council member and the

Corporation Counsel) eventually criticized Soulsby for enter-

ing into the claimed agreement with Hennessy, and Soulsby

publicly apologized.

On July 18, 1996, in the midst of these events, the Wash-

ington Post published a letter to the editor by O'Donnell,

which said:

I am writing to confirm the credibility of Capt. William

L. Hennessy of the Metropolitan Police Department. I

currently am employed by the Metropolitan Police De-

partment as a deputy chief of police assigned to the

technical services bureau as director of the property

division.

I was Capt. Hennessy's bureau chief during the better

part of the two years he spent as the commander of the

homicide branch. During this time, I observed Capt.

Hennessy to be a very loyal and extremely knowledge-

able and hard-working individual--one who clearly is

dedicated to the Metropolitan Police Department and the

citizens of the District of Columbia. Capt. Hennessy is a

"cop's cop"; he is a true leader.

I did not support Capt. Hennessy's transfer to a "non-

descriptive" assignment. It is my opinion that Capt.

Hennessy's transfer from the homicide branch not only

was a tragic loss to the Metropolitan Police Department

but a disservice to the citizens of the District.

Capt. Hennessy is an extremely credible person--

unlike the chief of police.

The following day, Soulsby and Barry demoted O'Donnell to

the rank of captain, and ordered him to a comparatively low

position as district patrol supervisor.

O'Donnell retired two weeks later, on July 31, 1996. As a

result of the fact that he was demoted before he retired, his

severance pay and payments for unused annual leave were

reduced by an amount that he estimates as $11,250. O'Don-

nell also says that he had intended to seek out a job as chief

of police of a large city, but that his demotion "irreparably

stigmatized" him in "the close-knit world of chiefs of police of

large cities and municipalities and eliminated him from any

real consideration for positions such as these." O'Donnell

ended up with a job as Chief of Police of Brunswick, Mary-

land.

On September 23, 1996, O'Donnell brought suit against the

District of Columbia, against Police Chief Soulsby and Mayor

Barry in their official capacities, and against Soulsby in his

individual capacity. O'Donnell's complaint claimed that the

foregoing events (1) violated his First Amendment rights; (2)

deprived him of a liberty interest in his good name and

professional reputation in violation of the due process clause;

and (3) deprived him of "his ability to pursue his chosen

occupational field," also in violation of the due process clause.

The defendants moved to dismiss or in the alternative for

summary judgment. The district court granted the motion to

dismiss as to the first two counts, and the motion for sum-

mary judgment as to the third. O'Donnell now appeals this

order.

The District also argued before the district court that

Soulsby was entitled to qualified immunity. The district

court did not reach this issue; the District presses it again on

this appeal.

II. Analysis

A.The First Amendment Claim

O'Donnell claims his transfer from the position of Deputy

Chief for the Investigative Services Bureau to the job at the

Property Division, and subsequent demotion to the rank of

captain and reassignment to a job as district patrol supervi-

sor, both occurred in retaliation for exercises of his right to

free speech. He cites five events that prompted the retalia-

tion against him: (1) his memo to Soulsby ranking crime

issues in the District; (2) his discussions with Soulsby about

the need to investigate the deaths of the 123 women; (3) his

criticism of Soulsby's claim in the Ballou High School speech

that the unsolved deaths were only discovered after O'Donnell

and Hennessy were transferred; (4) his memos on improve-

ments in the function of the Property Division; and (5) his

letter to the Washington Post.

The speech of public employees like O'Donnell enjoys con-

siderable First Amendment protection; the Supreme Court

has "unequivocally rejected" the proposition that public em-

ployees "may constitutionally be compelled to relinquish the

First Amendment rights they would otherwise enjoy as citi-

zens to comment on matters of public interest." Pickering v.

Board of Educ., 391 U.S. 563, 568 (1968). However, the reach

of this protection is not unlimited. A public official seeking to

make out a claim of retaliation in violation of her First

Amendment rights must meet a four-factor test. See Hall v.

Ford, 856 F.2d 255, 258 (D.C. Cir. 1988). "First, the public

employee must have been speaking on a matter of public

concern. If the speech is not of public concern, it is unneces-

sary to scrutinize the basis for the adverse action absent the

most unusual circumstances." Tao v. Freeh, 27 F.3d 635,

638-39 (D.C. Cir. 1994) (citations omitted). Second, the court

must consider whether the governmental interest in "promot-

ing the efficiency of the public services it performs through

its employees" without disruption, Pickering, 391 U.S. at 568,

outweighs the employee's interest, "as a citizen, in comment-

ing upon matters of public concern," id., and the interest of

potential audiences in hearing what the employee has to say,

United States v. National Treasury Employees Union, 513

U.S. 454, 468 (1995). Third, the employee must show that her

speech was a substantial or motivating factor in prompting

the retaliatory or punitive act of which she complains. See

Mt. Healthy City School Board of Education v. Doyle, 429

U.S. 274, 287 (1977). And finally, the employer should have

an opportunity to show "by a preponderance of the evidence

that it would have reached the same decision even in the

absence of the protected conduct." Id. "The first two fac-

tors under the Pickering test are questions of law for the

court to resolve, while the latter are questions of fact ordi-

narily for the jury." Tao, 27 F.3d at 639.

The District asserts that the first two elements of this test

are not satisfied here: it claims that O'Donnell's speech was

not on an issue of public concern, and asserts that, even if it

was, the city's interest in the efficient operation of the Police

Department far outweighed O'Donnell's interest in speaking

out. We address these two issues in that order.

1. Public Concern

The district court concluded that O'Donnell's memos to and

discussions with Soulsby were all on topics of public concern,

but that the letter to the editor was not. We agree with the

first finding, but disagree with the second; we find that all of

the communications at issue in this case were on topics of

public concern.

"Speech that concerns issues about which information is

needed or appropriate to enable members of society to make

informed decisions about the operation of their government

merits the highest degree of first amendment protection."

Hall v. Ford, 856 F.2d 255, 259 (D.C. Cir. 1988). All of the

speech at issue here falls into this category. Each of O'Don-

nell's memos to Soulsby involved important issues of Police

Department policy--questions of how to rank the Depart-

ment's law-enforcement priorities, and how to reform the

operations of the Property Division (which were, O'Donnell

claims, later shown by news reports to be in some need of

reform). His conversation with Soulsby about what priority

to give an investigation of over a hundred unsolved murders

was also obviously of great public concern; indeed, the con-

versation was itself prompted by a newspaper article critical

of Police Department ineptitude.

The district court concluded that O'Donnell's letter to the

editor was not on a subject of public concern because it

"related to long-standing internal disputes among O'Donnell,

Hennessy, and Soulsby, and not to matters of public concern

about the structure, management, or policies of the Depart-

ment," and did not contain any "information to educate or

inform the public about the operation of the MPD other than

to air Plaintiff's personal grievances." O'Donnell's conversa-

tion with Soulsby about the Ballou High School speech also

seems to have been motivated at least in part by personal

grievances.

In Connick v. Myers, 461 U.S. 138 (1983), the Court

considered the case of an employee of the New Orleans

District Attorney's office, who, dissatisfied with her impend-

ing transfer, circulated a questionnaire that asked a series of

general questions about levels of office morale and the confi-

dence employees had in their supervisors. The Court con-

cluded that (with one exception not relevant here) the "ques-

tions reflect[ed] one employee's dissatisfaction with a transfer

and an attempt to turn that displeasure into a cause clbre"

and hence did not raise issues of public concern. Id. at 148.

Connick emphasized, however, that "[w]hether an employ-

ee's speech addresses a matter of public concern must be

determined by the content, form, and context of a given

statement, as revealed by the whole record." Id. at 147-48.

Moreover, it is clear that the presence of a personal motiva-

tion for an employee's speech, although certainly a factor in

the public-concern analysis, need not destroy the character of

a communication as one of public concern. See Tao, 27 F.3d

at 639 ("The motivation of the employee is only one factor to

be considered in assessing whether a statement is one of

public concern."). Even a disgruntled employee can raise a

matter that is of considerable concern to the public. See, e.g.,

Connick, 461 U.S. at 148; Tao, 27 F.3d at 640; Stroman v.

Colleton County School Dist., 981 F.2d 152, 157-58 (4th Cir.

1992) (finding that although a letter circulated by a teacher to

fellow teachers was prompted by a "personal grievance," and

the letter's substance, "in large part, seems to be limited to

this grievance," the letter raised questions of budget misman-

agement, and hence was arguably on a subject of public

concern); Zamboni v. Stamler, 847 F.2d 73, 77-78 (3d Cir.

1988) (finding that a police detective's objections to a revised

promotion scheme were on a subject of public concern, even

though the employee was partly motivated by a desire to

improve his own chances for a promotion). Indeed, it may be

that those employees who are dissatisfied with their work-

places are precisely those who are likeliest to notice malfea-

sance, and be willing to speak up about it.

We find that there was a substantial public concern with

the subject matter of both the letter to the editor and the

conversation about the Ballou High School speech, and that

the fact that O'Donnell may have acted partly on the basis of

personal motivations makes no difference. O'Donnell's letter

to the editor raised two broad issues. First, by saying that

Hennessy's "transfer from the homicide branch not only was

a tragic loss to the Metropolitan Police Department but a

disservice to the citizens of the District," it indicated that the

Homicide Branch's work had been impaired by Hennessy's

loss. There had already been some public debate about the

effectiveness of the Homicide Branch (in the 60 Minutes

broadcast); O'Donnell's letter contributed to this debate, and

thus was on a subject of public concern.

Second, and more importantly, the letter contributed to the

public's knowledge of the Soulsby-Hennessy agreement, and

thus of Soulsby's fitness for office. The pact involved an

attempt by Soulsby to prevent information that might have

damaged his chances of confirmation from coming to light;

members of the public might legitimately see this agreement

as improper, or worse. Although, as we discuss below, there

remain questions about precisely what information the letter

contributed about the pact, it made at least an evaluative

contribution. It was therefore on a subject of public concern.

A communication that provides information that might help

the public to "make informed decisions about the operation of

their government merits the highest degree of first amend-

ment protection," Hall, 856 F.2d at 259; there are few more

fundamental decisions that the public can make about its

government than assessing the probity of a public official.

See Foster v. Ripley, 645 F.2d 1142, 1148 (D.C. Cir. 1981)

(observing that an employee's interest in speaking out is

"entitled to more weight when the employee is ... acting as a

whistleblower exposing corruption among public officials");

cf. Connick, 461 U.S. at 148 (noting that the plaintiff had not

claimed "that the District Attorney's Office was not discharg-

ing its governmental responsibilities," or sought "to bring to

light actual or potential wrongdoing or breach of public

trust").

Turning to O'Donnell's exchange with Soulsby after the

Ballou High School speech, O'Donnell says that he told

Soulsby that it was not true that the 123 unsolved murders

only came to light after O'Donnell and Hennessy were trans-

ferred, and reminded him that Soulsby himself had opposed

an investigation. This conversation implicated a number of

broader policy issues, including questions about whether

Soulsby had been right to transfer Hennessy and O'Donnell

to less responsible positions and about what caused the

backlog and how it was detected. Thus, this conversation,

too, was on a topic of public concern.

2. Governmental Interest

In the second step of the Pickering analysis, we consider

whether the government's interest in "promoting the efficien-

cy of the public services it performs through its employees,"

Pickering, 391 U.S. at 568, outweighs the employee's interest

in speaking out and the public's interest in hearing what he

has to say--or, in the case of speech made in private (like

some of the speech here), the public's interest in having the

employee make himself heard within his organization.

We have already outlined the nature of the interests on the

employee's side of the equation. As to those on the govern-

ment's side, the Court explained in Rankin v. McPherson,

483 U.S. 378, 388 (1987), that we must consider "whether the

statement impairs discipline by superiors or harmony among

co-workers, has a detrimental impact on close working rela-

tionships for which personal loyalty and confidence are neces-

sary, or impedes the performance of the speaker's duties or

interferes with the regular operation of the enterprise." And,

just as we consider the content, manner, time and place of the

speech in deciding whether it is of public concern at all, we

take these factors into account in weighing the governmental

interest in regulating the speech. See Connick, 461 U.S. at

152-53.

Before we launch into the governmental-interest analysis,

we will dispose of two preliminary issues. First, the District

rightly argues, and the district court correctly agreed, that

because of the special degree of trust and discipline required

in a police force there may be a stronger governmental

interest in regulating the speech of police officers than in

regulating the speech of other governmental employees. The

Supreme Court has found that a police department may

legitimately regulate its officers' personal grooming in order

to make its officers readily recognizable and promote "esprit

de corps," Kelley v. Johnson, 425 U.S. 238, 248 (1976), and a

number of courts of appeals have extended this principle to

regulation of speech. See, e.g., Tyler v. City of Mountain

Home, 72 F.3d 568, 570 (8th Cir. 1995) (finding that a police

department permissibly demoted a sergeant for sending a

confrontational letter to another police department on official

letterhead without first clearing the letter with the chief of

police, as required by police department policy). We note,

however, that the right to regulate an officer's speech is not

absolute, see Biggs v. Village of Dupo, 892 F.2d 1298, 1303

(7th Cir. 1990) ("[F]reedom of speech is not traded for an

officer's badge"); in particular, when a police officer speaks

out on an issue that he is uniquely qualified to address, we

must be cautious in accepting the claim that the public

interest demands that he be silent. See id. (citing Pickering,

391 U.S. at 572).

The District also observes that it is especially disruptive for

the high-level employees of a governmental agency to express

public disagreement with the agency's policies. This is true;

as we said in Hall, "[h]igh-level officials must be permitted to

accomplish their organizational objectives through key depu-

ties who are loyal, cooperative, willing to carry out their

superior's policies, and perceived by the public as sharing

their superiors' aims." 856 F.2d at 263. An employee may

be dismissed who "expresses views on matters within the core

of his responsibilities that reflect[ ] a policy disagreement

with his superiors such that they could not expect him to

carry out their policy choices vigorously." Id. at 265. In

Hall, for example, the athletic director at the University of

the District of Columbia was dismissed after repeatedly and

publicly disagreeing with his superiors about the proper

response to violations of university and National College

Athletic Association rules.

In order to decide whether a public employee is within the

"narrow band" of "key deputies" who are subject to this

analysis, id. at 263, we consider whether the employee's job

relates to policy matters, and whether the employee has

"broad responsibilities with respect to policy formulation,

implementation, or enunciation." Id. at 264. It is quite clear

that O'Donnell's initial position as head of the Investigative

Services Bureau was in this category; in that position, he was

in charge of numerous key operational offices of the Police

Department, and one of seven members of the Police Depart-

ment's Executive Committee, its principal policymaking body.

But when O'Donnell was transferred to the Property Divi-

sion, he moved outside of the "narrow band" we discussed in

Hall. His job seems to have had some policy responsibilities;

he was in charge of a number of Police Department facilities,

and his complaint describes several reforms he instituted in

their operations, seemingly on his own initiative. But we

doubt that O'Donnell's policy responsibilities were broad

enough, or sufficiently central to the Department's mandate,

to make him one of the "key deputies" discussed in Hall.

O'Donnell's work, although important, primarily involved sup-

port functions. And, as he describes his status within the

Department, his policymaking role was decidedly marginal.

Soulsby could safely dispense with answering his memos, and

O'Donnell was relegated to the audience at meetings of high-

level Police Department officials. On these facts, O'Donnell

cannot be labeled a "key deputy." 1

With these principles in mind, we turn to an analysis of the

speech in this case.

a. Memoranda. O'Donnell claims that after he wrote

Soulsby a memo about crime-fighting policy in the District,

Soulsby transferred him to the Property Division to block

discussion of crime in the District until after Soulsby was

confirmed. He also avers that Soulsby ignored his memos

about policy changes at the Property Division in order to

discourage him from uncovering problems at the Department,

and that these memos later helped prompt his demotion.

From their descriptions in the record, O'Donnell's memos

consisted entirely of innocuous, practical suggestions about

Police Department policy. If O'Donnell's memos played any

role in his transfer to the Property Division (and we do not

know for sure what led to that transfer), it might have been

in revealing policy differences between O'Donnell and Soulsby

of a kind that, under Hall, could legitimately prompt a high-

level deputy's transfer out of the inner circle. The same is

true of the memos O'Donnell wrote while at the Property

Division; it is hard to see how routine policy memoranda

could have prompted any adverse response from Soulsby, but,

if they did, it would have been the result of disagreements

about policy.2

__________

1 The District notes that O'Donnell remained very senior in rank

even after his transfer to the Property Division, and that he was a

long-serving and experienced officer whose words would be taken

seriously within the Department. It claims that this renders him a

"key deputy" under Hall. But Hall turns on a functional analysis

of the employee's responsibilities and whether they demand the

employee's unwavering fealty, not on an employee's length of

service or nominal rank.

2 O'Donnell's brief suggests that these memos were about issues

that did later make a big media splash, like "lost evidence" and an

"unguarded property warehouse." But his complaint mentions

b. Conversations. O'Donnell also avers that Soulsby

transferred him to the Property Division in retaliation for the

conversation in which O'Donnell argued that the 123 deaths

should be investigated further, and that his demotion was

partially prompted by the later conversation in which O'Don-

nell reprimanded Soulsby for misleading the public about the

investigation of those same deaths.

We begin with the first of these conversations. The Dis-

trict argues that, under Hall, Soulsby was entitled to transfer

O'Donnell on the basis of the policy differences this (asserted)

conversation revealed. Hall gives employers considerable

leeway to ensure that high-level officials toe the party line,

but it does not give them unchecked power to silence them.

In some cases, the public interest in a high-level official's

speech will outweigh any interest in that official's bureaucrat-

ic loyalty. Hall permits adverse action on the basis of speech

that implicates "the government interest in accomplishing its

organizational objectives through compatible policy level dep-

uties," 856 F.2d at 264; but sometimes what an employee has

to say will signal not policy differences but potential serious

violations of the public trust. For instance, had the athletic

director in Hall been punished merely for suggesting to the

university's board of directors that one of his subordinates

had committed a grave act of embezzlement, the result in that

case might have been different.

At first glance, O'Donnell's account of his conversation with

Soulsby seems troubling. Supposedly, O'Donnell was pun-

ished for disagreeing with Soulsby's order that nothing

should be done to investigate allegations that 123 murders of

African-American women had gone unsolved, even though a

serial killer might be at large--suggesting that O'Donnell was

challenging a severe breach of the public trust. A closer

examination, though, reveals the matter is more complicated.

O'Donnell gives only the vaguest account of Soulsby's reasons

for opposing an investigation. His complaint does not attrib-

ute any dishonorable motive to Soulsby (such as a desire to

__________

nothing of the kind, and indeed suggests that O'Donnell eventually

solved all of the problems he described in his memos.

cover up the Department's errors), and on this appeal O'Don-

nell cites no reason to believe that Soulsby had any such

motivation. Moreover, O'Donnell says that Soulsby called the

article about the backlog "untrue"; although it is unclear

what this means, one reading would be that Soulsby believed

that there was no unusual backlog because the number of

unsolved murders of African-American women was no larger

(taking populations into account) than the backlog of unsolved

murders generally. If so, the conversation turned on a

legitimate disagreement about statistics, rather than on a

potential dereliction of duty.

The vagueness of O'Donnell's complaint, however, renders

this reading, and any other, speculative. If it is O'Donnell's

claim that Soulsby retaliated against him for seeking to

dissuade Soulsby from committing a grave breach of the

public trust (or for some other impermissible reason) he

should make that claim more explicitly. In the absence of

any such allegation, we must assume that any adverse action

taken against him as a result of his conversation with Soulsby

occurred because of a legitimate disagreement about policy,

and so was permitted by Hall. We thus affirm the district

court's dismissal of this element of O'Donnell's claim.3

As to O'Donnell's later conversation with Soulsby about the

Ballou High School press conference, this incident merits

little discussion. There is little evidence of any causal link

between this conversation and O'Donnell's later demotion,

which was tied much more closely to O'Donnell's letter to the

editor. And, although the conversation raised some issues

about Soulsby's veracity, it did not touch on the more serious

issues surrounding the Soulsby-Hennessy pact. Finally,

__________

3 We note, however, that "a dismissal under Rule 12(b)(6) gener-

ally is not final or on the merits and the court normally will give

plaintiff leave to file an amended complaint." Charles A. Wright &

Arthur R. Miller, 5A Federal Practice and Procedure s 1357 at

360-61 (1990). This opinion does not foreclose O'Donnell from

seeking to file an amended complaint, especially given that neither

the district court nor the parties previously focused on the com-

plaint's inadequacies.

O'Donnell's personal motivations for this conversation were

especially strong, as he was responding to a speech in which

Soulsby had blamed him for the failure to detect the backlog

of unsolved murders.

c. The Letter to the Editor. We now turn to O'Donnell's

letter to the editor. The letter appears to be in that small

category of speech by public employees that has a high

potential both to cause disruption and to inform the public.

Because both elements of the governmental-interest analysis

are thus at their height, we must perform our analysis with

especial caution, to avoid shortchanging the interests on

either side of the equation.

We begin with the governmental interests. As the District

points out, O'Donnell's letter presented a substantial risk of

harming his relationship with Soulsby and injuring Police

Department morale and discipline. And, although (as we

have found) O'Donnell was not in Soulsby's inner circle when

he wrote the letter, he was a fairly senior police official, so

that it was of some importance that he appear loyal to his

superiors. But the circumstances of this case also weaken

the governmental interests to some extent. Although it no

doubt would have been difficult for Soulsby and O'Donnell to

work together after O'Donnell's letter was written, on the

record as it stands their working relationship seems to have

been very limited in any case: O'Donnell occasionally wrote

Soulsby memoranda (and received no response), and the two

occasionally saw each other at meetings, but there appears to

have been little other working relationship. See Rode v.

Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988) (noting that

the plaintiff and the supervisor she criticized did not work

closely together). And, as to the discipline and morale of the

Police Department, the frequent media criticism of the De-

partment's (and Soulsby's) performance in the weeks preced-

ing O'Donnell's letter had doubtless already taken its toll.

Although this did not leave O'Donnell entirely free to kick the

Department while it was down, the fact that his criticism was

cumulative does diminish the harm it caused. Moreover,

O'Donnell's letter followed a 60 Minutes broadcast which,

according to O'Donnell, "documented that senior detectives in

the Homicide Branch were firmly convinced that defendant

Soulsby's reassignment of Capt. Hennessy was unjustified

and had damaged the MPD," and in which Hennessy ac-

knowledged the existence of a tape of his confrontation with

Soulsby. There is no indication on the present record that

either the "senior detectives" or Hennessy were ever pun-

ished for these statements, which were presumably also quite

injurious to Department discipline and morale; this weakens

the District's claim that O'Donnell's letter could not safely be

left unpunished.

To turn to the public-concern side of the equation, O'Don-

nell's letter makes two principal points: it observes that

Hennessy's transfer out of the Homicide Branch hurt the

Branch, and it endorses the credibility of Hennessy and

questions that of Soulsby. The second comment overshadows

the first both in its potential value to the public and in its

potential disruptiveness; we will therefore focus our analysis

of that aspect of the letter.

As we have said, information about the pact was clearly of

great concern to the public; concrete additional information

about the circumstances of the pact might well have overcome

any governmental interest in silencing O'Donnell. But it is

unclear on the present record what O'Donnell's letter really

contributed to the public's knowledge about the Soulsby-

Hennessy pact. The value of a communication to the public

hinges on the extent to which a reasonable member of the

public would give it weight in deciding issues of public

importance. For instance, the public would reasonably give

little or no weight to expressions of personal animus or

spleen, but great weight to highly probative evidence bearing

on problems of public importance.

The Federal Rules of Evidence provide a useful guidepost

for assessing the probative value of O'Donnell's comments.

(We emphasize that we use these rules only as a framework

for our analysis; by no means do we purport to import the

rules of evidence wholesale into the First Amendment.)

O'Donnell's letter is cast in terms of "credibility," but it is

unclear how the public would have interpreted this term (or

indeed what he meant by it). If he meant merely to comment

generally on the character of Hennessy and Soulsby, then the

letter is of little value to the public. As the Advisory

Committee Note to Federal Rule 404 observes, "[c]haracter

evidence is of slight probative value and may be very prejudi-

cial," as it "tends to distract the trier of fact from the main

question of what actually happened on the particular occa-

sion." But if the letter is read as a commentary on the

believability of recent statements by Hennessy and Soulsby,

it might have more significance. As Rule of Evidence 608

indicates, evidence as to the credibility of a witness can at

times have substantial probative value.

We do not know which reading a reasonable member of the

public would have adopted, or to what extent the credibility of

statement by Hennessy and Soulsby was important in the

public's mind when O'Donnell wrote his letter. It is unclear

on the present record to what extent Soulsby contested

Hennessy's account of the pact. O'Donnell says that Soulsby

at some point publicly apologized for entering into his pact

with Hennessy, but we do not know whether this apology

occurred before or after O'Donnell wrote his letter. It may

also be that the state of the debate was such that an informed

reader would infer from O'Donnell's letter that his comments

on Hennessy's and Soulsby's veracity were based not only on

a general knowledge of their character, but also on personal

knowledge of some of the events surrounding the Soulsby-

Hennessy agreement. The allegations surrounding the pact

are exceptionally intricate (one expects a Maltese falcon to

enter into the story at any moment). In the eyes of an

informed reader, some of the statements in O'Donnell's letter,

such as his discussion of Hennessy's illustrious service at the

Homicide Branch, might have taken on a significance that is

invisible to us now.

The district court dismissed O'Donnell's First Amendment

claims before any record had been developed, and indeed

before the District filed an answer. We conclude that it is

not possible to decide what value O'Donnell's letter would

have had to the public without a more complete record as to

the state of the public debate at the time the letter was

written. If the public's view of the Soulsby-Hennessy pact

would reasonably have been influenced by evidence as to

Hennessy's (and Soulsby's) credibility, and if O'Donnell's

words on that subject would have carried weight, then O'Don-

nell's comments might have made a sufficient contribution to

the public debate to outweigh the governmental interest in his

silence. There are also some uncertainties in our analysis of

the nature of the governmental interest; it is unclear, for

instance, whether we are correct to assume that a number of

other Police Department officials had criticized Soulsby in

public with impunity. The district court should permit the

parties to develop these issues further on remand.

B.Due Process Clause

O'Donnell's complaint attempts to plead two distinct due

process claims. His first is based upon the stigma and loss of

"rank, status and pay" associated with the District's reassign-

ing him to the Property Division, blaming him for the failings

of the Department, and then demoting him. His second is

based upon the harm to O'Donnell's employment opportuni-

ties associated with these acts.

These claims are not really distinct under applicable due

process law, and they are in any event too broad. A loss of

rank, status and pay alone is not actionable under the Due

Process Clause. The Supreme Court found in Board of

Regents v. Roth, 408 U.S. 564, 573-78 (1972), that an at-will

employee has no liberty or property interest in continued

employment, and it is clear that D.C. law creates no such

interest. See D.C. Code s 4-104 (permitting the Mayor to

return Deputy Chiefs to the ranks of captain "when the

Mayor so determines"). Nor may O'Donnell sue purely on

the basis of the stigma associated with being fired; the Court

found in Paul v. Davis, 424 U.S. 693 (1976), that stigma alone

is not actionable, without a showing that a "right or status

previously recognized by state law" has been "distinctly al-

tered or extinguished." Id. at 711.

The Roth Court did cite two circumstances in which a

governmental employment decision might be actionable.

First, it observed that, although the plaintiff could not sue for

the nonrenewal of his contract alone, "[t]he State . . . did not

make any charge against [the employee] that might seriously

damage his standing and associations in the community," and

that "[i]t did not base the nonrenewal of his contract on a

charge, for example, that he had been guilty of dishonesty, or

immorality." Roth, 408 U.S. at 573. Second, the Court noted

that "there is no suggestion that the State, in declining to re-

employ the respondent, imposed on him a stigma or other

disability that foreclosed his freedom to take advantage of

other employment opportunities," and that it did not, for

instance, "invoke any regulations to bar the respondent from

all other public employment in state universities." Id.

O'Donnell argues that his claim fits within each of these two

exceptions.4

1. Reputation-Plus

The first category of claim, in which the plaintiff points to

the conjunction of official defamation and adverse employ-

ment action, is usually termed a "reputation-plus" claim.

Paul explained this passage of Roth as meaning that defama-

tion alone is not actionable under the due process clause, but

that defamation "in the course of the termination of employ-

ment" is. 424 U.S. at 710. This circuit has since said that a

demotion may also suffice to trigger a due process claim.

"For a defamation to give rise to a right to procedural due

process, it is necessary--we need not say when it is suffi-

cient--that the defamation be accompanied by a discharge

from government employment or at least a demotion in rank

and pay." Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir.

1983) (emphasis added). Although the conceptual basis for

reputation-plus claims is not fully clear, it presumably rests

on the fact that official criticism will carry much more weight

if the person criticized is at the same time demoted or fired.

Requiring a demotion or firing to trigger a defamation claim

__________

4 We reject the District's claim that O'Donnell's due process

claims should be denied because he did not expressly seek a name-

clearing hearing. There is no need for a plaintiff to make such a

request explicitly, so long as it is reasonably clear that what the

plaintiff complains of includes the lack of a hearing. Doe v. United

States Department of Justice, 753 F.2d 1092, 1103 (D.C. Cir. 1985).

also helps to limit the scope of permissible due process claims

to a small set of truly serious claims, thus limiting the

constitutionalization of tort law.

Although O'Donnell can point to isolated defamatory state-

ments and to a demotion, he cannot demonstrate that the two

occurred together; only defamation that is "accompanied by

a discharge from government employment or at least a

demotion in rank and pay" is actionable. Mosrie, 718 F.2d at

1161 (emphasis added). First, O'Donnell's transfer to the

Property Division did not involve any loss of rank. A lateral

transfer, even to a job that is regarded as a "dumping

ground," cannot form the basis of a reputation-plus claim.

Miller, 718 F.2d at 1156, 1161-62. O'Donnell also cites

Soulsby's criticism of him in the Ballou High School speech;

but O'Donnell's demotion was clearly triggered by his letter

to the editor, and had no obvious link, temporal or logical, to

the speech. Finally, on the record as it stands, there is no

sign that the District made any defamatory statements about

O'Donnell at the time of his demotion. See Orange v. District

of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995) (concluding

that a firing without any associated public statements is not

actionable).

2. Stigma or Disability

The second Roth exception turns on the combination of an

adverse employment action and "a stigma or other disability

that foreclosed [the plaintiff's] freedom to take advantage of

other employment opportunities," Roth, 408 U.S. at 573; it

differs from the first in that it does not depend on official

speech, but on a continuing stigma or disability arising from

official action. We applied this exception in Kartseva v.

Department of State, 37 F.3d 1524 (D.C. Cir. 1994). In that

case, the plaintiff was a Russian translator who had been

denied a security clearance by the State Department, and

therefore fired by the consulting company that employed her.

We distinguished two ways in which this denial could effect a

"stigma or other disability" within the meaning of Roth.

First, it might have "formally or automatically exclude[d]

Kartseva from work on some category of future State con-

tracts or from other government employment opportunities."

Id. at 1528. Second, it might, without this "binding effect,"

still have "the broad effect of largely precluding Kartseva

from pursuing her chosen career as a Russian translator."

Id. (emphasis omitted). O'Donnell claims that the various

measures that the District took against him effectively pre-

cluded him from pursuing his profession, and so bring him

within the second prong of Kartseva.

The Constitution protects an individual's "right to follow a

chosen trade or profession" without governmental interfer-

ence. Kartseva, 37 F.3d at 1529 (quoting Cafeteria Workers

v. McElroy, 367 U.S. 886, 895-96 (1961)). Government action

that has the effect of "seriously affect[ing], if not de-

stroy[ing]" a plaintiff's ability to pursue his chosen profession,

Kartseva, 37 F.3d at 1529 (quoting Greene v. McElroy, 360

U.S. 474, 492 (1959)), or "substantially reduc[ing] the value of

his human capital," Taylor v. Resolution Trust Corp., 56 F.3d

1497, 1506 (D.C. Cir. 1995), thus infringes a liberty interest.

There are, however, some limitations on this principle. As

the Court made clear in Siegert v. Gilley, 500 U.S. 226 (1991),

a showing of reputational harm alone cannot suffice to demon-

strate that a liberty interest has been infringed. Thus, a

plaintiff who (like O'Donnell) seeks to make out a claim of

interference with the right to follow a chosen trade or profes-

sion that is based exclusively on reputational harm must show

that the harm occurred in conjunction with, or flowed from,

some tangible change in status. One such change in status,

of course, is an adverse employment action.

O'Donnell claims that after his demotion he was unable to

find employment in his chosen field, as a chief of police in a

major city or municipality. After his complaint was filed, he

became police chief in Brunswick, Maryland, whose popula-

tion is 6,000. (Because this fact did not appear in O'Donnell's

complaint, the district court could not consider it in ruling on

the District's motion to dismiss; it therefore granted sum-

mary judgment as to Count III of O'Donnell's complaint.)

O'Donnell may well have suffered some stigma in the job

market as a result of his demotion. We conclude, however,

that the evidence in this case falls short of that required to

make out a claim under Roth and Kartseva. To begin with,

the stigma associated with O'Donnell's demotion was less

severe than that attached to Kartseva's disqualification.

Kartseva was disqualified, for unknown but potentially seri-

ous reasons, from an uncertain and perhaps broad range of

government employment; we found this to be potentially

sufficiently stigmatic to render her unemployable in much of

her field. By contrast, the reason for O'Donnell's demotion

was fairly clear, and the stigma itself less severe. Although it

is difficult to put a good face on the denial of a security

clearance, it may be that some employers would welcome a

police official who (as they might see it) places the public's

interest above bureaucratic pressures.

Furthermore, O'Donnell's new job demonstrates that the

stigma he suffered cannot have been too disabling. Although

he has moved from a large city to a town (Washington's

population is over 500,000, as against Brunswick's population

of 6,000), he has moved up in the ranks; he is now chief of

police. O'Donnell's overall responsibilities have certainly

dwindled (for instance, he supervises far fewer officers), and a

still greater diminution in his employment opportunities

might well have sufficed to show that the value of his "human

capital," Taylor, 56 F.3d at 1506, has dropped enough to

infringe his liberty interest in his chosen profession. But

O'Donnell has presented no concrete evidence (and the cir-

cumstances do not demonstrate) that he would have done

dramatically better on the job market in the absence of his

demotion. Certainly, we cannot be sure that he could have

obtained, as was his stated wish, a job as chief of police in a

"major city or municipality." Even if the demotion did set

him back a step on his career path (which may or may not be

true), that would fall markedly short of showing that his

ability to pursue his chosen profession has been "seriously

affected, if not destroyed." Kartseva, 37 F.3d at 1529 (quot-

ing Greene, 360 U.S. at 492). Summary judgment as to this

claim was therefore appropriate.

C.Qualified Immunity

The District argued below, and argues again here, that

Soulsby, the only individual defendant (Barry was sued only

in his official capacity), is entitled to qualified immunity. The

district court did not reach this question; we do, and we

agree with the District. An official is entitled to qualified

immunity unless she has violated a clearly established right.

"The contours of the right must be sufficiently clear that a

reasonable officer would understand that what he is doing

violates that right. This is not to say that an official action is

protected by qualified immunity unless the very action in

question has been held unlawful ... but it is to say that in the

light of preexisting law the unlawfulness must be apparent."

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). As our

analysis of the status of O'Donnell's letter demonstrates, it is

by no means clear whether that letter is legally protected, so

that any unlawfulness in Soulsby's acts in (allegedly) securing

O'Donnell's demotion was not "apparent." Soulsby is thus

entitled to qualified immunity.

III. Conclusion

In summary, we affirm the district court's dismissal of

O'Donnell's First Amendment claims, except for its dismissal

of his claim based on the letter to the editor. As to this

claim, we remand to permit the district court to determine, on

the basis of a more complete record, what the significance of

O'Donnell's references to the "credibility" of Hennessy and

Soulsby would have been to an informed member of the

public at the time O'Donnell wrote his letter, and in turn to

decide to what degree the letter touched on a topic of public

concern and hence weighed against the government's interest

in O'Donnell's silence. We affirm the district court's disposi-

tion (by dismissal and summary judgment) of O'Donnell's due

process claims. Finally, we find that Soulsby is entitled to

qualified immunity in the proceedings on remand.

So ordered.