Thompson v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2008 Decided June 27, 2008

No. 07-7067

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)

S. Micah Salb argued the cause and filed the briefs for

appellant.

William J. Earl, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellee. With him on the brief were

Peter J. Nickles, Interim Attorney General, Todd S. Kim,

Solicitor General, and Donna M. Murasky, Deputy Solicitor

General.

2

Before: GINSBURG, BROWN and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: James A. Thompson, Jr., appeals

the dismissal of his claims that the District of Columbia

retaliated against him for exercising his First Amendment

rights and fired him without affording him due process. We

affirm the district court’s conclusion that the First

Amendment did not protect Thompson’s speech, but reverse

its holding that Thompson had no right to due process.

I

Because the district court granted the District of

Columbia’s motion for judgment on the pleadings, we review

its decision de novo, accepting as true all the allegations in

Thompson’s complaint. See Peters v. Nat’l R.R. Passenger

Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992).

Thompson, while employed as Chief of Security for the

District of Columbia Lottery and Charitable Games Control

Board (“Lottery Board”), began investigating misconduct by

the Lottery Board and some of its contractors. Thompson’s

supervisors responded to his inquiries by disparaging and

reprimanding him, and shuffling him among various security

and audit positions. Undeterred, Thompson continued to

investigate and report the results to Lottery Board officials.

As a final measure of retaliation, in August 1996, a supervisor

reassigned Thompson from his job as Security Systems

Administrator to a post as Security Officer. The very next

day, he told Thompson the new job had previously been

designated for elimination under an agency-wide reduction-

in-force, effective in September 1996, and then placed him on

leave. When Thompson’s job was eliminated in September,

3

he was reassigned to a temporary post, which he held until it

expired in January 1997. Compl. ¶¶ 10–24, 32–33, 45–70.

Thompson sued the District of Columbia and others,

alleging (among other claims) that the District punished him

for First Amendment-protected speech and fired him in

violation of the Due Process Clause of the Fifth Amendment.

In 2004, the district court dismissed Thompson’s complaint,

but this court reversed the dismissal. See Thompson v.

District of Columbia, 428 F.3d 283 (D.C. Cir. 2005). On

remand, the district court again dismissed his claims, see

Thompson v. District of Columbia, 478 F. Supp. 2d 5 (D.D.C.

2007), and Thompson again appeals.

II

Thompson alleges the District of Columbia violated his

First Amendment rights by punishing him for speaking out

about corruption. The last time Thompson’s case came

before this court, we reversed the dismissal of his First

Amendment claim, explaining the complaint did not provide a

sufficient factual record for the district court to balance

Thompson’s interest “in commenting upon matters of public

concern” with the government’s interest in “promoting the

efficiency of the public services it performs through its

employees.” See Thompson, 428 F.3d at 285–87. Shortly

thereafter, the Supreme Court decided Garcetti v. Ceballos,

547 U.S. 410 (2006), holding that a threshold question—

“whether the [government] employee spoke as a citizen”—

must be decided before any balancing of interests. Id. at 418.

As the Court explained, “[t]he First Amendment limits the

ability of a public employer to leverage the employment

relationship to restrict … the liberties employees enjoy in

their capacities as private citizens.” Id. at 419. However, the

First Amendment places no restrictions on the government’s

4

right to punish employees for speech made “pursuant to their

official duties.” Id. at 421. Whether employees spoke

pursuant to their official duties, and thus receive no First

Amendment protection, is a “practical” inquiry—focusing not

on formal job descriptions, but on the employees’ actual

responsibilities. Id. at 424.

Ordinarily, employees who make recommendations to

their supervisors on subjects directly related to their jobs are

carrying out their official duties and thus receive no First

Amendment protection. See Davis v. McKinney, 518 F.3d

304, 313 n.3 (5th Cir. 2008) (“the caselaw is unanimous in

holding that employee’s communications that relate to his

own job function up the chain of command, at least within his

own department or division, fall within his official duties and

are not entitled to First Amendment protection.”). In

Garcetti, the Supreme Court concluded that a calendar deputy

for a state district attorney’s office, who wrote a

memorandum to his supervisors recommending the dismissal

of a pending prosecution, was speaking as part of his job. 547

U.S. at 421. Similarly, in Wilburn v. Robinson, 480 F.3d

1140, 1150–51 (D.C. Cir. 2007), this court held an employee

who complained to her employer’s personnel office about

discrimination in salary decisions was speaking pursuant to

her employment responsibilities, which included exposing

discriminatory practices in salary and hiring matters.

Significantly, in Freitag v. Ayers, 468 F.3d 528 (9th Cir.

2006) (as amended), the Ninth Circuit held a prison guard

who informed her state Senator and Inspector General about

harassment she suffered at work was speaking as a citizen,

and thus protected by the First Amendment; but also held she

was speaking as an employee when she reported the same

misconduct to her supervisors. Id. at 545–46.

5

When employees make recommendations to supervisors

on subjects directly related to their jobs, they are speaking as

employees even if the supervisors discourage this speech. In

Green v. Board of County Commissioners, 472 F.3d 794 (10th

Cir. 2007), a lab technician alleged her bosses retaliated

against her for disregarding their instructions and sending

samples for outside testing. The Tenth Circuit explained the

First Amendment did not protect the employee from

discipline because “[h]er disagreement with her supervisors’

evaluation of the need for a formal testing policy, and her

unauthorized obtaining of the confirmation test to prove her

point, inescapably invoke Garcetti’s admonishment that

government employee’s First Amendment rights do ‘not

invest them with a right to perform their jobs however they

see fit.’” Id. at 801 (quoting Garcetti, 547 U.S. at 422).

Similarly, in McGee v. Public Water Supply, 471 F.3d 918

(8th Cir. 2006), an employee alleged his boss fired him for

speaking out about a project’s non-compliance with

environmental standards. The Eighth Circuit held his speech

was part of his job responsibilities, and thus not protected by

the First Amendment, even though his supervisor had already

removed him from the project and told him not to worry

about any environmental problems. Id. at 921.

In this case, Thompson began his investigations when he

was Chief of Security, charged with “protecting the assets and

personnel of the D.C. Lottery through a comprehensive

system of physical and internal controls designed to detect

fraud, waste, and abuse within all operational components of

the D.C. Lottery.” Compl. ¶ 11. He claims at least some of

his subsequent investigations were outside of his job duties,

largely because his supervisors shuffled him among various

security and auditor positions. For example, when Thompson

tried to audit a contractor for failing to reimburse the Lottery

Board, one of his supervisors “directed [him] to leave [the

6

contractor] alone, telling [him] that he was not permitted to

audit [the contractor] because he had no right or authority to

do so.” Compl. ¶ 19.1

Thompson’s argument is no different from that rejected

in Green and McGee. He does not dispute that his initial

investigation was a direct part of his job duties, and thus

unprotected by the First Amendment. He continued to press

on with similar investigations despite interference and

transfers—but throughout the entire period, his job was

related to maintaining the integrity of the Lottery Board’s

operations and finances, albeit in changing capacities.

Instructively, he continued to report his findings to Lottery

Board officials, through verbal communications and written

reports. As our sister circuits recognized in Green and

McGee, it would be incongruous to interpret Garcetti, a case

concerned with allowing the government to control its

employees within their jobs, as giving broader protections to

disobedient employees who decide they know better than

their bosses how to perform their duties. In sum, we hold

Thompson’s complaints to Lottery Board officials about

corruption were clearly made pursuant to his official job

duties and thus the District of Columbia did not violate his

First Amendment rights by sanctioning him for his speech.

III

Thompson alleges the District of Columbia terminated

him without affording him the procedures guaranteed by the

1

Thompson urges us to go beyond the complaint and consider

deposition testimony from two of his supervisors, who claimed he

was acting outside of his duties during some of his investigations.

We need not decide whether we can consider this testimony

because the complaint already alleges that Thompson’s supervisors

told him he was acting outside of his official duties.

7

Due Process Clause of the Fifth Amendment. To state a valid

procedural due process claim, Thompson must first show he

had a protected property interest in his job. “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.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 538 (1985). Thompson had a property interest in his job

only if, under District of Columbia law, “he did not serve in

his job at his employer’s ‘will,’ but he could be removed only

‘for cause.’” Laureano-Agosto v. Garcia-Caraballo, 731

F.2d 101, 103 (1st Cir. 1984). At the relevant time, the

District of Columbia’s Comprehensive Merit Personnel Act

(“CMPA”) provided a “permanent employee in the Career or

Educational Service … may be … removed from the Service

only for cause and only in accordance” with the provisions of

the CMPA. D.C. Code § 1-617.1(b) (1981) (emphasis

added). Accordingly, a D.C. Career Service employee had a

protected property interest in his job and could not be

“removed from the Service” without receiving due process.

See D.C. Dep’t of Corr. v. Teamsters Union Local No. 246,

554 A.2d 319, 326 (D.C. 1989).

Assuming Thompson’s job was a Career Service

position, we must decide whether he correctly claims he was

“removed from the Service” in August 1996.2 At that time,

Thompson’s boss moved him from a permanent position as a

Security Systems Administrator to a job as a Security Officer,

informed him the new job was already slated for elimination

under an agency-wide reduction-in-force (“RIF”), effective

the following month, and immediately placed him on leave.

Under the law of both the District of Columbia and this

Circuit, an employee with a property interest in his job has the

2

Later in this section, we turn to whether Thompson’s job was a

Career Service position at this time.

8

right to due process if he raises a non-frivolous claim that his

employer eliminated his job, not as a genuine cost-saving

measure, but as a pretext for getting rid of him. See Levitt v.

D.C. Office of Employee Appeals, 869 A.2d 364, 366 & n.4

(D.C. 2005) (citing Fitzgerald v. Hampton, 467 F.2d 755,

758–60 (D.C. Cir. 1972)); Thompson, 428 F.3d at 288. This

case presents a somewhat different question: When an

employee is transferred to a position scheduled for imminent

elimination under an otherwise legitimate RIF, does the

deprivation of his property interests occur when he is

transferred or when the RIF actually eliminates the position? 3

We hold that when an employer attempts to get rid of an

employee by transferring him from a Career Service position

to a job already scheduled for imminent elimination pursuant

to an otherwise legitimate RIF, the employee is constructively

removed from the Service at the time of the transfer. Cf.

Clark v. Twp. of Falls, 890 F.2d 611, 618 (3d Cir. 1989)

(constructive demotions can trigger due process rights).

While no case we have found confronted this exact situation,

our holding is consistent with District of Columbia and

Circuit law because it recognizes a Career Service employee’s

right to due process at the time of the allegedly pretextual

action. See Levitt, 869 A.2d at 366 & n.4 (citing Fitzgerald,

467 F.2d at 758–60). Indeed, it would make little sense to

hold an employee’s due process rights are not triggered until

the RIF actually eliminates his job, in a case where the RIF is

a genuine streamlining measure that the employee has not

3

We do not address the question of when the deprivation of a

property interest occurs in a situation where the employee alleges

his employer came up with an illegitimate RIF specifically to get

rid of him. See, e.g., Levitt, 869 A.2d at 366 (employer transferred

employee into a newly created Career Service position and then

abolished the “very position it had specifically created for him.”).

9

challenged. It is far more sensible to allow the employee to

bring his challenge at the time of the prextual action—his

pretextual transfer to the doomed position.

Applying these principles to the present case is

straightforward. Thompson’s boss moved him to a job that

was scheduled for elimination under an agency-wide RIF.

Thompson does not argue that this RIF, which eliminated

many positions for streamlining purposes, was illegitimate.

Rather, his claim is he was transferred to one of the positions

scheduled for elimination as a mere pretext for getting rid of

him. Accordingly, assuming Thompson was a Career Service

employee in August 1996, his transfer was a constructive

“removal from the service” under the CMPA because he

raised a non-frivolous claim that this transfer was pretextual.4

Next, we must decide whether Thompson was a Career

Service employee in August 1996. The parties agree that

Thompson was a Career Service employee throughout most

of his time with the Lottery Board. The remaining dispute is

whether anything deprived him of Career Service status

before August 1996. On April 26, 1996, Congress enacted

the Omnibus Consolidated Rescission and Appropriations Act

(“OCRA”), Pub. L. No. 104-134, § 152(a), 110 Stat. 1321,

1321-102, which provided, in pertinent part:

[T]he heads and all personnel of the following offices,

together with all other District of Columbia executive

4

The District of Columbia argues Thompson was not deprived of

his job until January 1997, when the temporary position to which

he was assigned after the September 1996 RIF, expired. We need

not decide whether the January 1997 termination was a “remov[al]

from the Service,” within the meaning of CMPA, because

answering that inquiry does not change the status of the August

1996 transfer as a constructive removal, requiring its own process.

10

branch accounting, budget, and financial management

personnel, shall be appointed by, shall serve at the

pleasure of, and shall act under the direction and

control of the Chief Financial Officer: The Office of

the Treasurer. The Controller of the District of

Columbia. The Office of the Budget. The Office of

Financial Information Services. The Department of

Finance and Revenue.

In Leonard v. District of Columbia, 794 A.2d 618, 625–27

(D.C. 2002), the D.C. Court of Appeals held all employees

covered by OCRA became at-will, with no property interests

in their job. However, OCRA did not cover Lottery Board

employees—the Lottery Board was not one of OCRA’s listed

offices or departments and the District of Columbia’s brief

does not argue that Lottery Board employees were “other

District of Columbia executive branch accounting, budget,

and financial management personnel” at any point before

Thompson was placed in the doomed position in August

1996.5 Rather, the District points to two orders issued by the

District of Columbia Financial Responsibility and

Management Assistance Authority and the District of

Columbia Chief Financial Officer (“CFO”), which purported

to place the Lottery Board under the CFO and make its

employees at-will. Whatever the impact or validity of these

orders, they have no effect on this case because they issued in

5

The Lottery Board was established in 1981 and consisted of five

members, appointed by the Mayor of the District of Columbia. See

D.C. Code. § 3-1301. The record sheds no light on the proper

classification of Board employees, so we rest our decision on the

District’s failure to argue these employees were “other District of

Columbia executive branch accounting, budget, and financial

management personnel,” within the meaning of OCRA.

11

September 1996, a month after Thompson was constructively

removed from the Service.6

Thompson was a Career Service employee when his

supervisor transferred him to a doomed position in order to

get rid of him, thus depriving him of his property interest in

his job. Because the District of Columbia does not argue that

Thompson’s claim of pretext was frivolous and does not

contend it afforded him sufficient process, we reverse the

dismissal of his due process claim.

* * *

The judgment of the district court is therefore affirmed in

part and reversed in part, and the case is remanded for further

proceedings.

So ordered.

6

Any other subsequent changes to the status of Lottery Board

employees are similarly irrelevant.