Thompson v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2005 Decided October 28, 2005

Reissued December 22, 2005

No. 04-7106

JAMES A. THOMPSON, JR.,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 97cv01015)

Ellen K. Renaud argued the cause for appellant. On the

briefs was Richard L. Swick.

William J. Earl, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellee. With him on the brief were Robert J. Spagnoletti,

Attorney General, and Edward E. Schwab, Deputy Attorney

General.

Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

2

Concurring opinion filed by Circuit Judge EDWARDS.

TATEL, Circuit Judge: The District of Columbia Lottery

Control Board fired appellant, a career auditor, after more than

ten years of service. Troubled by the Board’s treatment of him,

appellant sued, alleging (1) that the Board fired him because he

engaged in First Amendment-protected activity, (2) that the

Board failed to afford him a hearing as required by the Fifth

Amendment’s Due Process Clause, and (3) that Board

supervisors acted in a manner sufficiently outrageous to

constitute intentional infliction of emotional distress. Finding

that the district court improperly dismissed appellant’s First and

Fifth Amendment claims on the pleadings, we reverse and

remand for further proceedings on those claims. And given that

appellant conceded at oral argument that the district court lacked

subject matter jurisdiction to resolve his intentional infliction of

emotional distress claims against the Board and the District of

Columbia, we vacate the judgment on those claims and remand

with instructions to dismiss for lack of jurisdiction.

I.

As we must in reviewing a judgment on the pleadings, we

view the complaint’s allegations in the light most favorable to

the plaintiff. Peters v. Nat’l R.R. Passenger Corp., 966 F.2d

1483, 1485 (D.C. Cir. 1992).

Appellant James A. Thompson Jr. began working for the

District of Columbia Lottery Control Board (“the Board”) as an

auditor in 1985. Moving up through the ranks over the next few

years, he became Chief of Security in 1988. In January 1994,

after a series of events not at issue in this appeal, the Board

reassigned him to the Audit Division.

In the course of his work as an auditor, Thompson made

several allegations of fraud and misconduct against the Board’s

3

on-line contractor, Lottery Technology Enterprise (LTE), and

LTE’s subcontractor G-TECH. His supervisors repeatedly

disparaged his reports and discouraged him from continuing his

investigations. Undeterred, Thompson pressed on. Of particular

note for this appeal, in a February 1996 memorandum to then-

Acting Executive Director Dorothy Wade, Thompson alleged

that LTE and G-TECH had retained some surplus computer

equipment without paying for it. Several months later, in July,

Wade gave Thompson an adverse performance evaluation,

which Thompson viewed as retaliation for his allegations.

Also in July, Board Director Frederick King transferred

Thompson to King’s “new security program.” The very next

day, King informed Thompson that a reduction in force (RIF)

would eliminate Thompson’s new position effective September

28. That same day, King and the Board’s General Counsel told

Thompson they were placing him on administrative leave until

September 18 because, they said, he “needed time to think.”

Thompson returned to work on September 18, and on

September 28, the day the RIF was scheduled to become

effective, the personnel office told him to return to work as if the

RIF had no effect on him. Two days later, the Board gave

Thompson a temporary assignment, and he continued working

until December 18, at which point he left on sick leave followed

by “Use or Lose Annual Leave.” The leave period lasted

through January 7, 1997, at which point Thompson informed

King that for medical reasons he could not return to work. On

February 26, Thompson received a personnel action form

advising him that his temporary appointment had expired on

January 29.

Thus out of work, Thompson filed suit in the U.S. District

Court for the District of Columbia, bringing numerous claims

against the Board and his individual supervisors. Thompson

4

later agreed to dismiss several claims in exchange for

defendants’ agreement not to seek summary judgment, leaving

three claims before the district court: retaliation against

Thompson on the basis of protected speech, failure to provide

him with due process before terminating him, and intentional

infliction of emotional distress. Defendants moved for judgment

on the pleadings, and the district court granted the motion on all

three counts. Thompson v. District of Columbia, No. 97-1015

(D.D.C. June 23, 2004); Fed. R. Civ. P. 12(c).

Thompson now appeals. Our review is de novo. Peters,

966 F.2d at 1485.

II.

By becoming a public employee, Thompson did not

relinquish his First Amendment right to “comment on matters of

public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968). Nor did he sacrifice his right to bring a First

Amendment claim by deciding “to communicate privately with

his employer rather than to spread his views before the public.”

Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16

(1979).

In evaluating Thompson’s First Amendment claim, we

engage in a four-element inquiry. O’Donnell v. Barry, 148 F.3d

1126, 1133 (D.C. Cir. 1998). We ask: (1) whether Thompson

spoke on “a matter of public concern”; (2) whether the

governmental interest in “promoting the efficiency of the public

services it performs through its employees” outweighs

Thompson’s “interest, as a citizen, in commenting upon matters

of public concern, and the interest of potential audiences in

hearing what [he] has to say”; (3) whether Thompson has

demonstrated that his “speech was a substantial or motivating

factor in prompting the retaliatory or punitive act”; and (4)

whether the Board has demonstrated that, even without the

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protected speech, “it would have reached the same decision.”

Id. (internal citations and quotation marks omitted). The first

two inquiries are questions of law, while the last two are

questions of fact usually left to the jury. Id.

The Board concedes that Thompson spoke on a matter of

public concern (element one). Moreover, the Board neither

disputes that Thompson’s complaint alleges sufficient facts for

a jury to conclude that his “speech was a substantial or

motivating factor” in adverse actions taken against him (element

three) nor argues that “it would have reached the same decision”

even without the protected speech (element four). Finally, the

Board nowhere claims that purely job-related speech loses all

First Amendment protection. See Garcetti v. Ceballos, No. 04-

473, ___ S. Ct. ___ (Feb. 28, 2005) (granting cert. on this

question), granting cert. to 361 F.3d 1168 (9th Cir. 2004). To

be sure, it asserts that Thompson’s allegedly protected speech

occurred during the performance of his job duties, but it does so

only in the context of emphasizing the strength of the

employer’s interest. Appellees’ Br. 24. This case therefore

hinges on element two, requiring that we balance the

government’s interests against those of Thompson and his

“potential audiences.”

The district court concluded as a matter of law that the

government’s “interest in maintaining an efficient workplace in

which subordinate employees do not threaten relationships with

important contractors and do not routinely disobey their

superiors” outweighed Thompson’s First Amendment rights.

Thompson, No. 97-1015, slip op. at 7 (D.D.C. June 23, 2004).

The district court erred in drawing that conclusion from this

limited record. As we have held, the balancing test calls for a

fact-intensive inquiry: “When confronted with firings that

implicate a public employee’s First Amendment rights, the

courts are required to conduct an individualized and searching

6

review of the factors asserted by the employer to justify the

discharge.” Tygrett v. Barry, 627 F.2d 1279, 1282-83 (D.C. Cir.

1980). The district court could not conduct this “searching

review” based on this record, nor can we. Consisting only of the

complaint, the record contains no evidence regarding the extent

of Thompson’s alleged disruptiveness.

To be sure, in its appellate brief the Board suggests that

Thompson’s inquiries were “unduly disruptive of the agency’s

overall mission and its relationship with essential contractors.”

Appellees’ Br. 24. But the Board, whose agreement to forbear

seeking summary judgment limits our review to the complaint,

points to nothing in that pleading to support its claim. Indeed,

the Board’s insistence that a RIF—rather than anything

Thompson did—motivated his dismissal undermines its

contention that the need to end Thompson’s disruptive behavior

outweighs the First Amendment interests at stake here. See

Tygrett, 627 F.2d at 1286 (requiring court to focus review on

reasons given by employer at time of discharge). If Thompson

behaved so badly, why didn’t the Board terminate him for

cause?

Also, Thompson’s allegation that LTE and G-TECH

engaged in improper practices, which we must accept as true at

this stage of the proceedings, indicates that he had good reason

to “threaten relationships” with them. Indeed, the unquestioning

obedience that the Board appears to demand seems a poor

attribute for an employee in Thompson’s position; to the

contrary, we would have thought that to be diligent, auditors

must ask difficult questions and conduct penetrating

investigations. Cf. Hall v. Ford, 856 F.2d 255, 264-65 (D.C.

Cir. 1988) (affirming dismissal for failure to state a claim where

plaintiff was high-level policy employee whose job required

“loyalty at the expense of unfettered speech” (internal quotation

marks omitted)).

7

In short, not only does Thompson’s complaint allege a First

Amendment violation, but nothing in it corroborates the Board’s

version of the story. The Board cannot prevail in a balancing

test with no record evidence on its side of the scale.

Nothing in Koch v. City of Hutchinson, 847 F.2d 1436 (10th

Cir. 1988) (en banc), upon which the Board relies, convinces us

to the contrary. There, the Tenth Circuit determined that the

City, which had terminated a Fire Marshal for submitting a

faulty report, had not violated the First Amendment. Id. at

1437-39. Koch differs from this case in two significant respects.

First, the Tenth Circuit reviewed a judgment n.o.v., so it

performed its balancing test with the benefit of a complete

factual record. Id. at 1439. Second, much of the deterioration

in the Fire Marshal’s relationship with his co-workers resulted

from their losing confidence in him—a loss of confidence which

the court found fully supported in the record. Id. at 1450-51.

Here, by contrast, the Board has offered no evidence that

Thompson performed poorly.

Accordingly, we will reverse the judgment on Thompson’s

First Amendment claim and remand for the district court to

develop a record sufficient to allow the “individualized and

searching review” required by our case law.

III.

We turn next to Thompson’s Fifth Amendment claim. The

Board concedes, as it must, that as a career employee Thompson

had a significant interest in continued employment, and that

“due process normally requires pre-termination proceedings of

some kind prior to the discharge.” Wash. Teachers’ Union

Local #6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997)

(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985)). The Board does not argue that it afforded Thompson

a pre-termination hearing. Instead, it claims that this case

8

presents one of the “extraordinary situations where some valid

governmental interest is at stake that justifies postponing the

hearing until after the event.” Id. (quoting United States v.

James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (internal

citations and quotation marks omitted in Wash. Teachers’

Union)).

For its “valid governmental interest,” the Board cites the

financial distress in which the District of Columbia found itself

around the time the Board fired Thompson—financial distress

that led to legislation giving District government agency heads

absolute discretion “to identify positions for abolishment.” D.C.

Code § 1-625.5(a) (1996 Supp.). The Board argues that because

it terminated Thompson in a RIF for financial reasons, nothing

it could have learned from a hearing would have changed its

mind.

The Board cites Washington Teachers’ Union for the

proposition that “the concept of procedural due process did not

require pre-deprivation hearings before execution of the 1996

modified RIFs.” Appellees’ Br. 29. Thompson, however,

unlike plaintiffs in Washington Teachers’ Union, contests the

assertion that a RIF caused his discharge. As we have

explained, moreover, “[w]ere we to look no further than the

stated reason for an employee’s separation, not only could an

agency cavalierly discharge [employees] under the guise of a

‘reduction-in-force’ but under that type of action it could also

deprive them of all adverse action procedural rights.” Fitzgerald

v. Hampton, 467 F.2d 755, 758-59 (D.C. Cir. 1972). If the

complaint in this case permits an inference that the RIF did not

cause Thompson’s discharge, granting judgment on the

pleadings would constitute precisely what Fitzgerald forbids:

“look[ing] no further than the stated reason.”

9

In this case, the complaint’s allegations provide ample

justification for questioning the Board’s stated reason.

According to the complaint, King transferred Thompson to a

new position one day and announced the RIF eliminating that

position the next. The sparse record before us reveals no

justification for moving Thompson into the doomed position,

even if the District’s financial distress justified abolishing it.

See Levitt v. D.C. Office of Employee Appeals, 869 A.2d 364,

366 (D.C. 2005) (refusing to accept District’s characterization

as RIF where employee was transferred to newly created

position which was abolished a few weeks later). Moreover,

nothing in the record indicates that the Board abolished the

permanent position Thompson had held before the transfer to his

short-lived new post.

Reductions in force are about terminating positions, not

people. If, on remand, the district court determines that the

Board sought to terminate Thompson rather than Thompson’s

position—either as retaliation for First Amendment-protected

activity or for some other reason—then the Board’s argument

that RIFs require no pre-termination hearings becomes

irrelevant. And once again, the Board finds itself in an awkward

litigating position: Its claim that Thompson caused problems

sufficient to outweigh his First Amendment rights undermines

its contention that the Board targeted Thompson’s position

rather than Thompson himself.

As we cannot determine on the basis of the complaint alone

whether the Board had a governmental interest that justified

depriving Thompson of a pre-termination hearing, we will

reverse the judgment on the Fifth Amendment claim and remand

for further proceedings consistent with this opinion.

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IV.

This brings us finally to Thompson’s intentional infliction

of emotional distress claim. The Board argues, as it did in the

district court, that the Comprehensive Merit Personnel Act

(CMPA), D.C. Code tit. 1, ch. 6, preempts this claim. At oral

argument, Thompson conceded that the CMPA strips the court

of jurisdiction over his claims against both the Board and the

District of Columbia. See Robinson v. District of Columbia, 748

A.2d 409, 411 n.4 (D.C. 2000) (holding that CMPA preemption

is jurisdictional). We will therefore vacate the judgment on

those claims and remand with instructions to dismiss for lack of

subject matter jurisdiction. See Utility Air Regulatory Group v.

EPA, 320 F.3d 272, 277 (D.C. Cir. 2003) (requiring resolution

of jurisdictional issues before turning to the merits).

As to the two individuals Thompson also sued, Thompson’s

appellate brief describes them as “not party to

appeal,” Appellant’s Br. at i, and Thompson never served them,

see id. at 33. Thus, neither the merits of those claims nor the

question whether the district court had subject matter

jurisdiction over them is before us.

V.

Because the complaint’s allegations suffice to state both

First and Fifth Amendment claims, we reverse the judgments on

those claims and remand for further proceedings consistent with

this opinion. And because the district court lacked subject

matter jurisdiction over the common-law claims against the

District and the Board, we vacate the judgment on those claims

and remand with instructions to dismiss for lack of subject

matter jurisdiction.

So ordered.

Edwards, Circuit Judge, concurring: I agree with the

majority that this case must be remanded to the District Court

for proper consideration of Mr. Thompson’s First Amendment

claim. I also agree that we lack subject matter jurisdiction over

Thompson’s intentional infliction of emotional distress claims

against the District of Columbia Lottery Control Board and the

District of Columbia. I write separately, however, to express

some concerns over Thompson’s Fifth Amendment claim, which

rests on his allegation that he was denied procedural due process

when the Board eliminated his position through a reduction in

force (“RIF”) without first affording him proper notice and

hearing. Thompson’s due process claim raises some challenging

issues that do not admit of simple resolution. I think these

issues require amplification so that the parties do not go astray

in their arguments when the case is heard again by the District

Court.

****

The first point that should be emphasized is that the District

Court may not need to reach Thompson’s due process claim.

The core of Thompson’s complaint is his allegation that the

Board retaliated against him for engaging in protected speech.

In other words, Thompson charges that his job was eliminated

and he was fired because he leveled charges of fraud and

misconduct against contractors who had been retained by the

Board. If the District Court finds that Thompson’s speech was

a matter of public concern, that the governmental interests in

efficient Board operations did not outweigh Thompson’s

interests as a citizen in commenting on matters of public

concern, that Thompson’s speech was a substantial or

motivating factor in the Board’s retaliation against him, and that

the Board would not have taken the same action absent

Thompson’s protected speech, then Thompson will have had a

full and fair hearing on his core complaint and he will secure all

the relief that he seeks in this law suit. No good purpose will be

served for the District Court to decide whether Thompson was

also denied procedural due process when he was terminated

2

without a hearing if the trial court determines that Thompson is

entitled to relief on his First Amendment claim.

Indeed, given the posture of this case, it would appear that

the disposition of the First Amendment claim may dispose of the

entire case. If Thompson wins on his First Amendment claim,

there is no good reason to address his Fifth Amendment claim.

If he loses on his First Amendment claim that the RIF was a

pretext, it is hard to fathom what he will gain – in real terms –

from an order saying that he was entitled to notice and an

opportunity to discuss the RIF with his superiors before he was

terminated. No matter. Thompson’s complaint frames his due

process claim independently of the alleged First Amendment

violation, arguing that his status as a “career service employee”

entitled him to due process before being terminated. I therefore

accept the majority’s conclusion that Thompson’s Fifth

Amendment claim must be addressed if he loses on his First

Amendment claim, on the assumption that he may have been

denied proper notice and an opportunity to be heard before his

job was eliminated by RIF.

****

It is far from clear that Thompson has a viable claim under

the Fifth Amendment. I say this without meaning to prejudge

the issue. All that I mean to say is that this case poses some

baffling questions with respect to Thompson’s due process

claim. The only thing that is clear at this point is that the matter

cannot be resolved on the pleadings or on the vague assertions

advanced by the parties in their arguments to this court. Should

it become necessary for the District Court to resolve the due

process claim, the parties must first develop a coherent record

and then endeavor to square the facts in the record with existing

case law. This will be no mean feat.

Thompson’s claim that he was entitled to pretermination

process relies on principles first articulated in Cleveland Board

3

of Education v. Loudermill, 470 U.S. 532 (1985). In Loudermill,

the Court held that a civil service employee who has a right to

continued employment has a constitutionally recognized

property interest that entitles him to “some kind of hearing”

before he is terminated. Id. at 542 (internal quotation marks and

citation omitted). “The need for some form of pretermination

hearing . . . is evident from a balancing of the competing

interests at stake. These are the private interest in retaining

employment, the governmental interest in the expeditious

removal of unsatisfactory employees and the avoidance of

administrative burdens, and the risk of an erroneous

termination.” Id. at 542-43 (citing Mathews v. Eldridge, 424

U.S. 319, 335 (1976)).

The Court made it clear, however, “that the pretermination

‘hearing,’ though necessary, need not be elaborate.” Loudermill,

470 U.S. at 545. Generally, a full evidentiary hearing is not

required if the affected employees are entitled to a full

administrative hearing and judicial review after termination. Id.

“The essential requirements of due process . . . are notice and an

opportunity to respond.” Id. at 546. “To require more than this

prior to termination would intrude to an unwarranted extent on

the government’s interest in quickly removing an unsatisfactory

employee.” Id.

****

Thompson’s dealings with the Lottery Board, at least as he

outlines them in his complaint, do not necessarily fit within the

compass of Loudermill. In order to determine whether

Thompson has presented a viable Fifth Amendment claim, the

District Court must determine whether Thompson was deprived

of a protected property interest, and, if so, whether he received

the process he was due. UDC Chairs Chapter, Am. Ass’n of

Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of

Columbia, 56 F.3d 1469, 1471 (D.C. Cir. 1995) (citing Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). The first

4

inquiry, whether Thompson had a property interest, is a matter

of local law. “Property interests are not created by the

Constitution, ‘they are created and their dimensions are defined

by existing rules or understandings that stem from an

independent source such as state law.’” Loudermill, 470 U.S. at

538; see also Bd. of Regents v. Roth, 408 U.S. 564, 577-78

(1972). The second inquiry has two elements. The District

Court must first decide, as a legal matter, what procedures were

required, and second, as a factual matter, whether the procedures

available to Thompson – if any – met the legal requirement.

****

In determining whether Thompson had a protected property

interest, the District Court will be forced to decide whether to

focus on the time before or after Thompson was transferred to

the new position that was eliminated by the Board during the

purported RIF. If Thompson’s earlier position is relevant for

assessing his due process entitlements, and if the District Court

finds that he was a career service employee subject only to

termination for cause, then Loudermill suggests that his

expectation in continued employment constituted a protected

property interest. See Loudermill, 470 U.S. at 538-39. On the

other hand, if the relevant focal point is Thompson’s RIF’d

position, it is less clear whether he enjoyed a property right.

At least two decisions issued by this court have suggested

that the existence of a property right in a government job –

particularly a position eliminated under the auspices of the

District’s 1996 Budget Act, as Thompson’s position ostensibly

was – does not survive a fiscally induced layoff. See Wash.

Teachers’ Union Local #6 v. Bd. of Educ. of the Dist. of

Columbia, 109 F.3d 774, 779-80 (D.C. Cir. 1997); Am. Fed’n of

Gov’t Employees v. Office of Pers. Mgmt., 821 F.2d 761, 767

(D.C. Cir. 1987). I suppose that the argument under this line of

analysis might be that an employee cannot hold a “property

right” tied to a RIF’d position, because a person in a position

5

slated for a RIF has no reasonable expectation of continued

employment. I doubt that the case law of this circuit means to

go this far, however. To date, the most that we have said is that

“it is by no means obvious that a property interest. . . . survive[s]

a reduction-in-force.” Am. Fed’n of Gov’t Employees, 821 F.2d

at 767. And in Washington Teachers’ Union, the court

suggested only that “enactment of the 1996 Budget Act and of

the emergency rules” may have “extinguished [the RIF’d

employees’] property interests.” 109 F.3d at 779. It would be

a mistake to make too much of these decisions.

It is noteworthy that our sister circuits have not shared our

doubts about the survival of a property interest after a RIF,

especially where the former employee asserts that the RIF was

really a subterfuge for firing a particular individual. In West v.

Grand County, 967 F.2d 362, 367 (10th Cir. 1992), for example,

the Tenth Circuit explained that it had “no doubts” that an

employee alleging a pretextual RIF maintained her protected

property interest, arguing that the very function of a hearing

would be to determine whether or not the RIF had been

legitimate. Labeling an employee’s termination “a ‘reduction in

force’ does not affect her entitlement to a pretermination hearing

when she is asserting that the reduction in force was a sham

aimed particularly at her.” Id. at 368. The Seventh Circuit

employed similar reasoning in Lalvani v. Cook County, 396 F.3d

911 (7th Cir. 2005). The court emphasized that “the mere

intonation of the acronym ‘RIF’” does not avoid the need for a

due process hearing, the very purpose of which is “precisely to

find out whether the termination under the auspices of a RIF was

permissible or not.” Id. at 915 (citations and quotations

omitted); see also Whalen v. Mass. Trial Court, 397 F.3d 19, 26

(1st Cir. 2005) (stating that where “it seems inescapable that [an

employee’s] job performance” influenced selection for a

reorganization layoff, it is fundamental “that some process is

due”); Misek v. Chicago, 783 F.2d 98, 101 (7th Cir. 1986)

(“Accordingly, absent good cause, [RIF’d employees] were

6

improperly dismissed unless on remand it should be determined

that their discharge was pursuant to an actual reorganization of

the agency.”).

This court has yet to determine what process is due when an

employee contends that his RIF was a subterfuge. We have

merely suggested that the extent of necessary pretermination

process may depend upon the number of individuals subject to

a RIF. See Wash. Teachers’ Union, 109 F.3d at 780-81; UDC

Chairs, 56 F.3d at 1474 (“Where, as here, the deprivation turns

on a policy decision and not on an individual’s characteristics,

a pre-deprivation hearing would do little to reduce the risk of

erroneous deprivation of the [employees’] interests.”); see also

Whalen, 397 F.3d at 25 (“[B]ecause reorganizations often affect

numerous employees, the governmental interest in efficient

administration may weigh more heavily in such

circumstances.”). It is significant, however, that this court has

never rejected the principle enunciated in West, i.e., that an

otherwise protected civil service employee alleging a pretextual

RIF retains his protected property interest and, thus, may insist

on notice and an opportunity to respond. See West, 967 F.2d at

367.

In this case, then, the question whether Thompson held a

protected property interest in his pre-transfer position will

antecede any further analysis. Whether or not a property interest

survives a RIF, Thompson will have no entitlement to notice and

a hearing of any sort if he never had a property interest in the

first place. Moreover, the facts alleged in this case are more

complicated than those presented in other circuits’ cases dealing

with allegedly pretextual RIFs. Whereas those cases dealt with

individuals who occupied protected positions slated for

elimination, they do not provide insight into how to treat an

employee who claims the sham was his transfer from a protected

position into a doomed position, not selection of the position to

be RIF’d. The District Court must consider this matter on

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remand in determining whether Thompson had a protected

property right.

****

If the District Court finds that Thompson had a protected

property right, it must next determine what process he was due.

It is important to note that courts finding a continued property

interest in RIF’d positions have demanded only the most skeletal

pretermination process. “The standards for a pretermination

hearing are not stringent because of the expectation that a more

formal post-termination hearing will remedy any resulting

deficiencies.” Id. Following the Court’s holding in Loudermill,

see 470 U.S. at 546, the West court noted that a “full evidentiary

hearing is not required,” but rather, “notice and an opportunity

to respond” suffices to meet the employer’s due process burden.

West, 967 F.2d at 367. The court therefore held that the

plaintiff’s opportunity to “discuss her potential termination”

with superiors represented adequate pretermination process for

a RIF’d employee, especially where the employee later received

a formal grievance hearing before presumptively neutral

decisionmakers. Id. at 368-69.

While the availability of post-deprivation proceedings may

limit how much pretermination process is due, the converse is

also true. The Seventh Circuit, for example, acknowledged that

“when there is an opportunity for a full post-termination hearing,

due process does not require an employer to provide full ‘trial-

type rights.’” Baird v. Bd. of Educ. for Warren Comm’ty Unit

Sch. Dist. No. 205, 389 F.3d 685, 690-91 (7th Cir. 2004). But

the court further held that “[a] state law breach of contract claim

is not an adequate post-termination remedy for a terminated

employee who possesses a present entitlement and who has been

afforded only a limited pre-termination hearing.” Id. at 692. To

avoid granting substantial pre-deprivation process to an

employee with a present entitlement to his job, an employer

must provide post-deprivation procedures that “are characterized

8

by promptness and by the ability to restore the claimant to

possession.” Id.

If the District Court reaches the ultimate question – whether

the Lottery Board denied Thompson process that he was due –

its answer will depend on a critical examination of what pre-

deprivation processes were available to Thompson, and the

extent to which their efficacy was bolstered by the promise of

more formal proceedings down the road. The inquiry will be

fact-intensive, focusing on whether Thompson received notice

of his precarious employment situation; whether he conferred

with superiors about his status; and, if he did not confer with his

superiors, whether he had the opportunity to do so.

These threshold questions are important, because, at least

based on the pleadings, it is impossible to tell precisely how

much “notice” Thompson received in advance of his job moves

and ultimate termination, and whether he talked with his

superiors about his situation. Indeed, it is unclear whether

Thompson even contends that he was foreclosed from contesting

his transfer to the job that was eliminated. It may be that

Thompson was unaware that the job into which he was

transferred was unprotected, but that remains to be determined.

In answering these questions, the District Court will also

need to ascertain exactly what post-deprivation procedures were

available to Thompson. For example, it appears that, at the time

of the events giving rise to this law suit, employees alleging

retaliatory RIFs could “institute a civil action in the Superior

Court,” which could impose injunctive or monetary remedies.

D.C. CODE. § 1-616.3(c) (1998 Repl.). An action initiated under

that provision would “[o]perate as an exhaustion of the

employee’s administrative remedies” and “[c]onstitute the

employee’s exclusive remedy under the laws of the District.”

Id. § 1-616.3(e). It is unclear whether Thompson qualified for

these procedures – or, alternatively, whether a comparable

provision applied – and whether he had access to whatever

9

procedures were available. It is also unclear whether the

procedures statutorily accorded to Thompson contained

adequate safeguards to buttress whatever less formal notice-and-

hearing opportunities were available to him before his

termination.

****

There is reason to believe that the District Court’s

resolution of Thompson’s First Amendment claim will dispose

of this case. That will be fortunate indeed, because the Fifth

Amendment claim raises some perplexing questions that will not

be easily resolved, especially on a spare and confusing record

like the one that is now before the court.