Thompson v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2015 Decided August 12, 2016

No. 14-7210

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. 1:97-cv-01015)

S. Micah Salb argued the cause for appellant. With him

on the briefs was Dennis Chong.

Mary L. Wilson, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellee District of Columbia. With her

on the brief were Karl A. Racine, Attorney General, Todd S.

Kim, Solicitor General, and Loren L. AliKhan, Deputy

Solicitor General.

Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In 1996, the District of

Columbia Lottery and Charitable Games Control Board

terminated James Thompson, Jr.’s employment by assigning

him to a position that had been marked for elimination only

the day before. Thompson filed suit under 42 U.S.C. § 1983,

alleging in part that his termination violated his Fifth

Amendment right to due process. In the almost twenty years

since, the district court has dismissed Thompson’s complaint

three times, and we have reversed two of those dismissals.

Before us now is the district court’s most recent dismissal of

Thompson’s complaint, as well as its denial of his motion for

summary judgment. We reverse the district court again and

remand for the district court to enter partial summary

judgment for Thompson. Only two issues will then remain to

be resolved on the merits: whether the District can be held

liable under section 1983 for the violation of Thompson’s due

process rights and, if it can, a determination of the damages.

I

James A. Thompson, Jr. is an experienced auditor and

security systems expert. He served as the Chief of the

Financial Division of the Metropolitan Police for several

years before joining the Lottery and Charitable Games

Control Board (Lottery) as an auditor in 1985. Once at the

Lottery, he was promoted twice before becoming Security

Systems Administrator in 1996. In this position, Thompson

spearheaded efforts to identify threats to the integrity of the

Lottery’s operations.

Thompson’s tenure soured, however, when several audits

he supervised unearthed what he thought was unethical, if not

illegal, behavior. For example, in a February 1996 audit,

3

Thompson found that equipment purchased by the Lottery

from a subcontractor for almost $7 million had been placed on

a depreciation schedule that gave the equipment “no monetary

value” just five years later. J.A. 149-53. In his report,

Thompson explained that Lottery officials had certified the

computer equipment as worthless and returned it to the same

subcontractor for “disposal” as part of a new purchase

agreement. Id. The audit report described this as “an

excessively costly business decision,” in part because the

equipment likely had at least some monetary value due to

recent upgrades. Id. at 150-51. Thompson concluded, as a

result, that the “business arrangement [was] unethical at the

best; and may be interpreted as a misappropriation of

government assets, at worst.” Id. at 157. This conclusion,

Thompson further noted, was consistent with news reports of

misappropriation and fraudulent procurement activities at the

Lottery. 1 Id.

Throughout the summer of 1996, Thompson brought the

troubling conduct he had uncovered to the attention of his

supervisor, the Lottery’s Executive Director, Frederick King.

But King refused to investigate the misconduct. Instead, King

put an end to Thompson’s employment. On August 22, 1996,

in the midst of a District budget crisis, King designated a

Security Officer position for elimination through a reduction

1

Thompson’s reports and the newspaper articles were not the

only indications that the Lottery’s contracting practices were highly

irregular. A later external investigation by the District’s Financial

Responsibility and Management Assistance Authority confirmed

that “the contracting practices of the Lottery . . . raise[d] serious

questions of propriety and conflict of interest.” J.A. 165. The issues

the Authority found were serious enough that the Lottery was

required to revise one of its “major contracts.” Id.

4

in force. 2 The next day, King reassigned Thompson from his

job as Security Systems Administrator to the doomed

position.

The Lottery gave Thompson no notice of this

reassignment and offered him no hearing to challenge the

action. In fact, the personnel form signed by King to

effectuate the reassignment represented only that the action

fixed “a classification error.” Regardless of what it was

called, this fix left Thompson without a job because several

days later, King called Thompson into his office to inform

him that his position had been eliminated in a reduction in

force. King gave Thompson a personnel form explaining that

he would be removed from service in 30 days and that he had

a right to appeal that separation to the District’s Office of

Employee Appeals. But the form made no mention of

Thompson’s prior reassignment to the position that had been

marked for elimination. As a result, it did not inform

Thompson of any right he might have had to challenge that

employment action. That same day, King also placed

Thompson on paid leave for several weeks. While Thompson

was eventually allowed to return to work in a temporary

position, that position expired in January 1997, again leaving

Thompson without a job. Soon after, the Lottery hired a new

security manager.

Later that same year, the Lottery Control Board removed

King from office after an FBI investigation into the Lottery’s

2

A reduction in force is a “reduction in personnel caused by a

lack of funding or the discontinuance or curtailment of a

department, program or function of an agency” that has no

“punitive or corrective” role. See Davis v. Univ. of D.C., 603 A.2d

849, 852 n.8 (D.C. 1992). See generally William E. Slack & Mark

G. Weisshaar, Note, Reduction in Force: A Guide for the

Uninitiated, 44 GEO. WASH. L. REV. 642 (1976).

5

operations. The Board found that King had “expos[ed] the

agency to liability” through his questionable “personnel and

other actions.” J.A. 163. In particular, the Board identified

King’s “dismantl[ing] the security division, [and thus] putting

the agency at risk,” as a justification for his removal. Id.

On May 12, 1997, Thompson filed this action under 42

U.S.C. § 1983, claiming, as relevant here, that he was denied

his Fifth Amendment right to due process prior to his

termination at the Lottery. See U.S. CONST. amend. V. After a

motions practice that lasted seven years, the district court

concluded that Thompson had failed to state a claim. We

reversed the district court in Thompson v. District of

Columbia, 428 F.3d 283 (D.C. Cir. 2005) (“Thompson I”),

holding that Thompson stated a claim when he alleged that he

was transferred without due process to a position that was

immediately eliminated in a reduction in force. Id. at 288.

On remand, the district court dismissed the case once

again, this time concluding that because Thompson had no

protected property interest in his position, he was unable to

establish an essential element of a due process claim.

Thompson v. District of Columbia, 478 F. Supp. 2d 5, 9-10

(D.D.C. 2007); see UDC Chairs Chapter, Am. Ass’n of Univ.

Professors v. Bd. of Trs. of the Univ. of D.C., 56 F.3d 1469,

1471 (D.C. Cir. 1995) (explaining that the two prongs of a

due process claim are whether the employee was deprived of

a protected interest, and if so, whether he received the process

he was due). We reversed the district court in Thompson v.

District of Columbia, 530 F.3d 914 (D.C. Cir. 2008)

(“Thompson II”), holding that Thompson had a protected

property interest in his position because he was a career civil

servant under District of Columbia law and that he could not

be removed from that position without due process. Id. at

918-20. We also held that transferring Thompson to a

6

canceled position was a constructive removal from service

that deprived him of his protected interest in his job. Id. at

919.

For nearly five years after this second remand, the district

court presided over another lengthy pretrial process. On

March 1, 2013, Thompson filed a motion for summary

judgment, in which he argued that there were no factual issues

left to be resolved after nearly sixteen years of discovery, and

that the undisputed facts demonstrated that he was entitled to

judgment as a matter of law. Almost a year later, the district

court denied that motion without explanation in a minute

order. Thompson then tried a new tack. He filed a motion to

set a trial date or, in the alternative, to reassign the case to a

judge who had docket space for an immediate trial. In his

motion, Thompson pointed out that his case had stalled well

past the four years that it takes an average litigant in our

district courts to complete a trial and notified the court that he

was of increasingly poor health and advanced age.

The district court responded by holding a pretrial

conference where the court directed the parties to file

additional pleadings on what damages a jury could award

Thompson. After considering the parties’ responses, and with

no motion to dismiss before it, the district court entered a

minute order dismissing Thompson’s action for the third time.

The written order that followed explained that Thompson

could not recover compensatory damages for his termination

unless he could show that he would not have been terminated

had he been given due process. Thompson v. District of

Columbia, No. 97–1015 (D.D.C. Feb. 18, 2015). In the

district court’s view, Thompson had made no such showing.

Id. Thompson appealed.

7

We treat this most recent dismissal as a grant of summary

judgment to the District, because the district court went

beyond the pleadings. See id. (reasoning that Thompson “has

offered no such evidence” to support his damages claim);

Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir.

2003) (per curiam). We have jurisdiction under 28 U.S.C.

§ 1291 to review the district court’s decision, as well as its

earlier denial of Thompson’s motion for summary judgment.

Our review is de novo. Wilburn v. Robinson, 480 F.3d

1140, 1148 (D.C. Cir. 2007). We view the evidence in the

light most favorable to the party opposing summary

judgment, draw all reasonable inferences in that party’s favor,

and avoid weighing the evidence or making credibility

determinations. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.

Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods., 530

U.S. 133, 150 (2000)). Summary judgment is appropriate only

if “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). There is a genuine issue of material fact “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

Because Thompson seeks to hold the District liable under

section 1983, he must show not only that his right to due

process was abridged, but that a policy or custom of the

District caused the violation. See Warren v. District of

Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). We conclude

that Thompson has shown that his due process rights were

violated and that this violation caused his alleged damages.

Accordingly, we reverse the district court’s grant of summary

judgment to the District and, in part, its denial of Thompson’s

motion for summary judgment. But we remand to the district

court to address whether the District can be held liable under

8

section 1983 for this violation and, if it can, for a

determination of the amount of damages to which Thompson

is entitled.

II

We engage in a “familiar two-part inquiry” to determine

whether Thompson’s due process rights were violated. See

UDC Chairs Chapter, 56 F.3d at 1471 (quoting Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). We must

determine whether Thompson was deprived of a protected

interest, and, if so, whether he received the process to which

he was entitled. Id. In Thompson II, we already decided

Thompson was deprived of a protected property interest in his

Security Systems Administrator position when he was

transferred to the Security Officer position. 530 F.3d at

918-20. Typically, we would then need only to ask whether

Thompson received the process he was due. Because the

District does not contest that Thompson received no notice of

the reassignment that effectively ended his full-time

employment work at the Lottery, our inquiry should be at an

end. But the District resists this result on two separate

grounds, neither of which has merit.

The District urges us to revisit our conclusion in

Thompson II that Thompson was deprived of his property

interest at the time of his assignment to the Security Officer

position. Id. Our conclusion from Thompson II is not binding,

the District contends, because there we were asked to review

the dismissal of a complaint and had to accept as true

Thompson’s allegations. But now that our review is at

summary judgment, the District argues that a reasonable juror

could question whether the Lottery’s employment action was

a “transfer” and instead conclude that the Lottery merely

“reclassified” Thompson. The District relies on a single

9

personnel form issued on the date Thompson was reassigned,

which summarily states that the change corrected a

classification error. Correcting this error, the District argues,

is not a “transfer” that triggers any process.

But the argument that Thompson was “reclassified”

rather than “transferred” rests on a distinction without a

difference. The bottom line of our holding in Thompson II

was that Thompson, as a career civil servant, was stripped of

his property interest when he was placed in a position that had

previously been marked for elimination. We will not revisit

that legal conclusion now. See Crocker v. Piedmont Aviation,

Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (“When there are

multiple appeals taken in the course of a single piece of

litigation, law-of-the-case doctrine holds that decisions

rendered on the first appeal should not be revisited on later

trips to the appellate court.”). Whether Thompson was

“transferred” or “reclassified” into this position, he was

effectively terminated at that time because the Security

Officer position had already been slated for elimination. For

our purposes, it is the substance of a constructive termination,

and not the semantics of a “transfer” or “reclassification,” that

matters in determining whether Thompson was deprived of

his protected property interest in his job.

We likewise reject the District’s argument that Thompson

received all of the process that he was due. In support, the

District points to the notice that Thompson received of his

right to challenge the elimination of his new position in the

reduction in force. But, as we explained in Thompson II,

Thompson was constructively terminated at the time of his

transfer, not when this new position was eliminated. He thus

had a right to notice of that transfer and a hearing to challenge

his transfer before it was made. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985) (explaining that

10

constitutional due process requires a hearing “prior to the

discharge of an employee who has a constitutionally protected

property interest in his employment” (emphasis added));

Thompson II, 530 F.3d at 919 (“District of Columbia and

Circuit law . . . recognize[] a Career Service employee’s right

to due process at the time of the allegedly pretextual action.”

(emphasis added)). The District does not contend that

Thompson received any such notice or opportunity to contest

the transfer. And, although the Supreme Court has indicated

that a hearing may be postponed in “extraordinary situations

where some valid governmental interest is at stake,” Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 570 n.7 (1972)

(citation omitted), the District does not argue that any such

circumstances existed in this case. At a minimum then,

Thompson’s pre-deprivation right to due process was violated

when the District assigned him to a position scheduled for

imminent elimination without notice or a hearing.

Moreover, Thompson testified that he was never notified

of his right to contest the transfer. The District never presents

any evidence in rebuttal by showing, for example, that he was

in fact notified of this right at a meaningful time after the

constructive termination. See Propert v. District of Columbia,

948 F.2d 1327, 1331-32 (D.C. Cir. 1991) (“The essence of

due process is the requirement that a person in jeopardy of

serious loss [be given] notice of the case against him and

opportunity to meet it . . . at a meaningful time and in a

meaningful manner.” (citations omitted)). The hearing the

District offered Thompson to challenge the elimination of the

Security Officer position did not give him a meaningful

opportunity to contest the prior constructive termination

because Thompson was never notified that he could challenge

that action. As a result, we conclude that Thompson’s right to

due process was violated.

11

III

The District is correct that Thompson cannot recover

compensatory damages arising from a termination that would

have occurred even had he been given due process. See Carey

v. Piphus, 435 U.S. 247, 263 (1978); see also Montgomery v.

City of Ardmore, 365 F.3d 926, 937 (10th Cir. 2004). But the

district court erred when it granted summary judgment to the

District on the ground that Thompson failed to show that, had

he been given due process, he would have kept his job. Once

a plaintiff establishes that he was terminated without due

process and demonstrates damages arising from that

termination, the defendant is responsible for those damages

unless the defendant shows they would have occurred

regardless. See, e.g., Brewer v. Chauvin, 938 F.2d 860,

864-65 (8th Cir. 1991) (en banc). Because Thompson met his

burden under this framework and the District failed to meet its

burden, Thompson is entitled to recover any compensatory

damages that he can show resulted from his termination.

In Mount Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), the Court

considered a suit for damages based on a claimed violation of

the First Amendment. Doyle was an untenured teacher

involved in several incidents of allegedly unprofessional

behavior. Id. at 281-82. After the school board decided that

Doyle should not be rehired, id. at 282-83 n.1, Doyle sued,

claiming the decision violated his First Amendment right to

free speech. The district court agreed and held that Doyle was

entitled to backpay and reinstatement. Id. at 283-86. The

Supreme Court affirmed that a constitutional violation had

occurred, but concluded that the school board was entitled to

“attempt[] to prove to a trier of fact that quite apart from such

conduct Doyle’s record was such that he would not have been

rehired in any event.” Id. at 286. The Court thus placed the

12

burden on Doyle to show that his conduct was constitutionally

protected and a substantial factor in the school board’s

adverse employment decision. Id. at 287. But once that

burden was met, the school board could escape responsibility

for the resulting damages by showing that it would have

declined to rehire Doyle for reasons other than his conduct

protected by the First Amendment. Id.

The Court reaffirmed this framework a year later in

Carey v. Piphus, 435 U.S. 247 (1978). There, schoolchildren

argued that they had been suspended without due process and

sought compensatory damages. In reversing the district

court’s dismissal of the complaints, the Seventh Circuit

recognized that the defendants could avoid paying

compensatory damages if they could show, on remand, that

the children would have been suspended even with a hearing.

Id. at 260. The Supreme Court agreed, id., and ever since then

has assumed that this framework applies when it considers

damages for other constitutional torts. See, e.g., Texas v.

Lesage, 528 U.S. 18, 21 (1999) (per curiam) (describing the

underlying principle in constitutional tort claims as providing

that “[t]he government can avoid liability by proving that it

would have made the same decision without the

impermissible motive”).

The best reading of Doyle and Carey—as the Third,

Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have

held—is that a plaintiff can recover compensatory damages

for a defendant’s unconstitutional conduct unless the

defendant shows that the injury would have occurred

anyway. 3 This rule is especially well suited to cases like

3

See Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984); Wheeler

v. Mental Health & Mental Retardation Auth. of Harris Cty., Tex.,

752 F.2d 1063 (5th Cir. 1985); Franklin v. Aycock, 795 F.2d 1253

(6th Cir. 1986); Patkus v. Sangamon-Cass Consortium, 769 F.2d

13

Thompson’s, where the defendant is in the best position to

prove an alternative, permissible justification for its adverse

employment action. Accordingly, the district court erred when

it granted summary judgment to the District on the basis that

Thompson—the plaintiff—had not shown that he would have

kept his job even given notice and a hearing. This was the

District’s burden and no reasonable juror could conclude from

the record that it was met.

The District protests that a reasonable juror could

conclude that Thompson would have been terminated for

cause based on an allegedly adverse performance evaluation

that he received a month before his termination. But the

District conceded below that the “satisfactory rating” that

Thompson received was not adverse. See Defs.’ Resp. to Pl.’s

Statement of Material Facts that Are Not Disputed, No.

97-cv-01015, J.A. 263 (“[T]he defendants deny that the

plaintiff received any adverse performance evaluation in July

3, 1996, and submit that the reason that he received a

‘satisfactory rating’ is due to the fact that his supervisor only

evaluated him for three months and did not have sufficient

time to evaluate Mr. Thompson as a manager.”). The District

cannot change its position now. In any event, a reasonable

juror could not conclude that a “satisfactory” rating provided

cause to fire Thompson.

In sum, Thompson has done everything required to show

that the damages arising from his termination were caused by

the violation of his due process rights. The District has not

met its burden to show that Thompson would have lost his

position even if he had received due process and, as a result,

1251 (7th Cir. 1985); Brewer v. Chauvin, 938 F.2d 860 (8th Cir.

1991) (en banc); McClure v. Indep. Sch. Dist. No. 16, 228 F.3d

1205 (10th Cir. 2000). But cf. Miner v. City of Glens Falls, 999

F.2d 655 (2d Cir. 1993).

14

we reverse the district court’s grant of summary judgment to

the District and remand for the district court to enter partial

summary judgment for Thompson as to the violation of his

due process rights.

IV

The District asserts that, even if Thompson was denied

due process, Monell v. Department of Social Services, 436

U.S. 658 (1978), shields the city from liability for his

termination. In Monell, the Supreme Court established that a

municipality is liable under 42 U.S.C. § 1983 for

constitutional violations caused by its policies or customs. Id.

at 690-91. But “a municipality cannot be held liable solely

because it employs a tortfeasor—or, in other words, a

municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. at 691. The injury must

instead be inflicted by municipal “lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy.” Id. at 694. The Supreme Court has held that a single

action can represent municipal policy where the acting official

has final policymaking authority over the “particular area,

or . . . particular issue.” McMillian v. Monroe Cty., 520 U.S.

781, 785 (1997); City of St. Louis v. Praprotnik, 485 U.S. 112,

123 (1988) (plurality opinion). Here, that means the District is

liable for Thompson’s termination if King was a final

policymaker for Lottery personnel decisions at the time of the

reduction in force that cost Thompson his job. But the district

court did not reach this issue and we cannot decide it on the

inadequate record before us. As a result, we must remand this

issue to the district court for further development.

Determining whether an official is a final policymaker

for section 1983 purposes is no simple task. See Auriemma v.

Rice, 957 F.2d 397, 400 (7th Cir. 1992) (describing the

15

decisions of the circuits on this issue as “so varying that there

is little point in canvassing them”). While the Supreme Court

has resolved that the question is a legal one for the court to

decide based on state or local law, Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 737 (1989), the Court has not settled on a

precise test for determining what type of authority under local

law makes an official a “final policymaker.” Its prior plurality

opinions have emphasized that to hold a municipality liable

for an official’s one-time action, the official must have final

policymaking authority in the particular area, and the

challenged action must have been taken pursuant to that

authority. See Praprotnik, 485 U.S. at 123 (plurality opinion);

Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986)

(plurality opinion).

In analyzing whether the official had policymaking

authority in the area at issue, a plurality of the Court has

identified two guiding inquiries. First, if the official’s

decisions were constrained by policies enacted by others, then

“those policies, rather than the subordinate’s departures from

them, are the act of the municipality.” Praprotnik, 485 U.S. at

127 (plurality opinion). And second, if the official’s decisions

were reviewable by the city’s “authorized policymakers,” then

the official is not the final policymaker. Id. A plurality in

Pembaur v. City of Cincinnati offered the following

hypothetical to explain that an official is not a “final

policymaker” merely because he has the authority to make

discretionary decisions:

[T]he County Sheriff may have discretion to hire and fire

employees without also being the county official

responsible for establishing county employment policy. If

this were the case, the Sheriff’s decisions respecting

employment would not give rise to municipal liability,

although similar decisions with respect to law

16

enforcement practices, over which the Sheriff is the

official policymaker, would give rise to municipal

liability. Instead, if county employment policy was set by

the Board of County Commissioners, only that body’s

decisions would provide a basis for county liability. This

would be true even if the Board left the Sheriff discretion

to hire and fire employees and the Sheriff exercised that

discretion in an unconstitutional manner; the decision to

act unlawfully would not be a decision of the Board.

However, if the Board delegated its power to establish

final employment policy to the Sheriff, the Sheriff’s

decisions would represent county policy and could give

rise to municipal liability.

475 U.S. at 483 n.12 (plurality opinion).

Here, the District contends that King was not a final

policymaker for the District’s personnel decisions. According

to the District, King possessed the same authority as the

hypothetical Sheriff—i.e., even though King, as the Executive

Director of the Lottery, had discretion to hire and fire

individual employees, the Lottery Board maintained final

authority over both King and his personnel decisions. In

support, the District points to a provision of the city code that

gave the Board authority to direct and supervise King’s

employment of others at the Lottery. See D.C. CODE

§ 3-1303(d)(3) (2001) (“The Executive Director shall, subject

to the direction and supervision of the Board . . . [e]mploy

other assistants and employees in accordance with the District

of Columbia Government Comprehensive Merit Personnel

Act of 1978.”); see also id. § 2-2503 (1981) (same). 4

4

It appears that the 1992 and 1998 supplements to the D.C.

Code, where cited in this section, contain the same language that

was in effect at the time of Thompson’s termination. However, we

were unable to locate an authoritative copy of the 1996 Supplement

17

According to the District, this provision cabined King’s

power to make personnel decisions by subjecting his

decisions to oversight from the Board. Further, the District

urges that the provision constrained King’s discretion by

requiring him to comply with the Comprehensive Merit

Personnel Act (CMPA), which required that a career civil

servant receive notice and a hearing before termination. The

District argues that it cannot be subject to liability for King’s

deviation from that official municipal policy, because, in the

Supreme Court’s terms, the official “polic[y], rather than the

subordinate’s departures from [it], [is] the act of the

municipality.” Praprotnik, 485 U.S. at 127 (plurality opinion).

If our analysis were constrained to a single provision in

the city code, the District’s argument would be more

persuasive than it is. Looking at this provision in tandem with

other parts of the code, we conclude there is significant reason

to believe that King was a final policymaker with regard to

the types of Lottery personnel decisions that led to

Thompson’s constructive termination. We have already

recognized that King had “absolute discretion ‘to identify

positions for abolishment’” for the purposes of the reduction

in force at the time of Thompson’s constructive termination.

See Thompson I, 428 F.3d at 287 (citing D.C. CODE

§ 1-625.5(a) (1996 Supp.)). The D.C. Code further provided

that King would “make a final determination that a position

within the [Lottery] is to be abolished.” D.C. CODE

§ 1-625.5(b) (1998 Supp.) (repealed) (emphasis added); see

also Budget Support Temporary Act of 1995, D.C. Law

11-78, tit. IV(b).

to the D.C. Code. On remand, the parties should provide and cite to

the law in effect in 1996, at the time of Thompson’s termination.

18

Moreover, the record is replete with evidence that King

exercised his authority over personnel matters without any

control by other District officials. See Praprotnik, 485 U.S. at

145 (Brennan, J., concurring in the judgment) (noting that

under section 1983, “the law is concerned not with the

niceties of legislative draftsmanship but with the realities of

municipal decisionmaking, and any assessment of a

municipality’s actual power structure is necessarily a . . .

practical one”); see also Jett, 491 U.S. at 737 (The court

determines who is a final policymaker by “[r]eviewing the

relevant legal materials, including state and local positive law,

as well as custom or usage having the force of law.” (citation

omitted)). King admitted, for example, that he alone drew up

the list of positions to be terminated, moved employees

around to avoid adverse repercussions from the reduction in

force, and decided on the number and types of employees

who should be eliminated. Indeed, King testified that no one

supervised his decisions about personnel actions, and no

evidence suggests otherwise. J.A. 90-92. Read together, the

D.C. Code and King’s testimony indicate that King’s

decisions were not in fact “review[ed]” by the “authorized

policymakers” that the District argues constrained King.

Praprotnik, 485 U.S. at 127 (plurality opinion); see also Ware

v. Jackson Cty., 150 F.3d 873, 882 (8th Cir. 1998) (“[T]he

existence of written policies of a defendant are of no moment

in the face of evidence that such policies are neither followed

nor enforced.”); cf. Daskalea v. District of Columbia, 227

F.3d 433, 442 (D.C. Cir. 2000) (holding a “‘paper’ policy

cannot insulate a municipality from liability where there is

evidence . . . that the municipality was deliberately indifferent

to the policy’s violation”).

Nor is it clear that other policies restricted King’s ability

to terminate Thompson, such that those policies, “rather than

the subordinate’s departures from them,” were the act of the

19

municipality. Praprotnik, 485 U.S. at 127 (plurality opinion).

As Executive Director of the Lottery, King was the designated

“personnel authority” for all Lottery employees except

himself and the Deputy Director. See D.C. CODE

§ 1-604.6(b)(14) (1992 Supp.). This meant that King was at

least empowered to implement “rules and regulations”

governing Lottery personnel matters. See id. § 1-604.6. In

fact, the code presumed that he would also issue rules,

regulations, and standards pursuant to this authority. Id.

§ 1-604.1 (“Further, it is the intent of the Council that the

rules, regulations, and standards issued by the personnel

authorities under this chapter should be as flexible and

responsive as possible and reflect an awareness of innovation

in the fields of modern personnel management and public

administration.” (emphasis added)). Moreover, the District

fails to point to evidence in the city’s laws that might indicate

that the Board ever exercised any of its authority to constrain

King’s policymaking by passing its own personnel policies to

“direct” him. See Vodak v. City of Chicago, 639 F.3d 738,

747-48 (7th Cir. 2011) (concluding that a subordinate was a

final policymaker despite a city council having authority that

it did not use to enact ordinances to constrain the

subordinate’s authority).

At the time of Thompson’s termination, King’s personnel

policies also seem to have been removed from the ordinary

rules of oversight that the District points to as evidence that

the Board maintained the ability to direct and supervise

King’s personnel decisions. See D.C. CODE § 1-625.5(g)

(1998 Supp.) (repealed). In fact, the District seems to have

expressly exempted King from the ordinary requirements of

the CMPA in making these decisions. See id. § 1-625.5(a)

(“Notwithstanding any other provision of law, regulation, or

collective bargaining agreement either in effect or to be

negotiated while this legislation is in effect for the fiscal year

20

ending September 30, 1996, each agency head is authorized,

within the agency head’s discretion, to identify positions for

abolishment.”); see also id. § 1-625.5(c) (“Notwithstanding

any rights or procedures established by any other provision of

this subchapter, any District government employee . . . who

encumbers a position identified for abolishment shall be

separated without competition or assignment rights, except as

provided in this section.”). The Council may thus have

delegated final policymaking authority to King over Lottery

personnel matters at the time of Thompson’s termination,

even if other municipal bodies also had policymaking

authority.

Contrary to the District’s argument, our decision in

Singletary v. District of Columbia, 766 F.3d 66 (D.C. Cir.

2014), does not prevent this conclusion. In Singletary, we

determined that the District could not be held liable under

Monell for the Board of Parole’s decision to revoke

Singletary’s parole because the Board was not a final

policymaker when it came to parole revocation. Id. at 73-74.

The Mayor had final rulemaking authority for parole

revocations, which he had delegated to the Board’s

Chairperson, who had played no role in the decision to revoke

Singletary’s parole. Id. Even though the Board had final

authority over the decision, it lacked the requisite

policymaking authority under District law. Id. at 74. But here,

District law gives us reason to believe that King might have

held such final policymaking authority with regard to Lottery

personnel matters. Accordingly, Singletary does not foreclose

the conclusion that King may have set the municipal policy

that was used in Thompson’s termination.

Because neither party has fully briefed the impact of

these provisions on the Monell analysis, however, we remand

this issue to the district court for it to consider in the first

21

instance. On remand, Thompson may also present his

alternative arguments for the District’s liability under

Monell—e.g., that the District had developed a “policy or

practice” of unconstitutional terminations at the Lottery.

V

Finally, we address Thompson’s request that we reassign

the case on remand. Although we are concerned with the

district court’s treatment of this case on the last remand,

particularly the decision to sua sponte dismiss the case, the

court’s actions have not triggered the need for reassignment.

See United States v. Wolff, 127 F.3d 84, 88 (D.C. Cir. 1997)

(establishing that impartiality, the appearance of justice, and

the possibility of waste and duplication are the three factors

considered for reassignment). We are confident that the

district court will act expeditiously on remand in this case.

VI

The district court’s order granting summary judgment to

the District of Columbia is reversed, the district court’s denial

of Thompson’s summary judgment motion is reversed in part,

and the case is remanded to the district court for further

proceedings consistent with this opinion.