The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 6, 2020 Decided July 31, 2020
No. 18-7151
MICHELLE THOMPSON, PERSONAL REPRESENTATIVE OF THE
ESTATE OF JAMES ALLEN 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 and filed the briefs for
appellant.
Mary L. Wilson, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued
the cause for appellees. With her on the brief were Karl A.
Racine, Attorney General, Loren L. AliKhan, Solicitor General,
and Caroline S. Van Zile, Deputy Solicitor General.
Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: In 1996, Frederick King,
Executive Director of the District of Columbia Lottery and
Charitable Games Control Board (“Lottery Board”), took a
series of personnel actions designed to push his employee,
James A. Thompson, Jr., out of his job without due process. In
1997, Thompson filed this suit against the District of Columbia
under 42 U.S.C. § 1983, seeking compensation for King’s
violation of his Fifth Amendment rights.
We hold that the district court erred in denying
Thompson’s motion for summary judgment and granting
summary judgment against Thompson on the ground that the
District was not itself liable for King’s constitutional tort. King
was acting as a final policymaker on behalf of the District when
he took the series of personnel actions that led to Thompson’s
constructive termination without due process. As such, the
District is liable for King’s wrongdoing. We remand for the
district court to enter summary judgment against the District on
the liability issue and, at long last, to determine the appropriate
amount of damages.
I
A
James A. Thompson, Jr., was hired by the Lottery Board
as an auditor in 1985. He came aboard as an experienced
auditor and security systems expert, having previously served
as the Chief of the Financial Division of the Metropolitan
Police Department for several years. In 1996, after a series of
promotions, Thompson was named the Lottery Board’s
Security Systems Administrator. That meant that he was
tasked with reviewing and ensuring the integrity of the Lottery
Board’s operations.
3
Thompson’s relationship with his superiors quickly began
to sour “when several audits he supervised unearthed what he
thought was unethical, if not illegal, behavior” at the Lottery
Board. Thompson v. District of Columbia (Thompson III), 832
F.3d 339, 341 (D.C. Cir. 2016).
For example, in a February 1996 audit, Thompson
discovered that the Lottery Board had purchased computer
equipment for almost $7 million from a subcontractor, only to
place the equipment on a depreciation schedule that labeled it
worthless just five years later. Then, as part of a new purchase
agreement, Lottery Board officials gave the rather expensive
computer equipment back to the same subcontractor—at no
cost to the subcontractor—despite the fact that “the equipment
likely had at least some monetary value due to recent
upgrades.” Thompson III, 832 F.3d at 342. Thompson
described the business arrangement as “unethical at the best[,]”
and perhaps “a misappropriation of government assets, at
worst.” Id. He added that his concerns comported with news
reports of other acts of misappropriation and fraudulent
procurement activities at the Lottery Board. Id.1
Throughout the summer of 1996, Thompson repeatedly
raised his concerns about the Lottery Board’s questionable
practices with his supervisor, Frederick King, the Lottery
Board’s Executive Director. But King refused to investigate.
1
A later external investigation by the District’s Financial
Responsibility and Management Assistance Authority confirmed
that “the contracting practices of the Lottery [Board] raised serious
questions of propriety and conflict of interest.” Thompson III, 832
F.3d at 342 n.1 (formatting modified). The Lottery Board was
subsequently forced to revise one of its “major contracts.” Id.
(internal quotation marks omitted).
4
Instead, King took a series of adverse personnel actions that, in
short order, left Thompson without his job.
First, on August 22, 1996, King used temporary authority
granted to him amidst a District budget crisis to designate a
vacant Security Officer position for elimination. Specifically,
King turned to the Budget Support Temporary Act of 1995,
which created a reduction-in-force protocol that, as relevant
here, empowered “each agency head * * * to identify positions
for abolishment,” D.C. CODE § 1-625.5(a) (Supp. 1998), and
then granted “each personnel authority” the power to “make a
final determination that a position within the personnel
authority is to be abolished,” id. § 1-625.5(b).2 As the
Executive Director of the Lottery Board, King was both the
“agency head” and the “personnel authority” for all Lottery
Board employees (other than himself, obviously, and the
Deputy Director of the Board). Id. § 1-603.01(11) (defining
“agency head” as the highest ranking executive official of an
agency”); id. § 1-604.6(b)(14) (naming the Executive Director
as the Lottery Board’s personnel authority).
Second, on the next day, August 23rd, King transferred
Thompson from his Security Systems Administrator position
“to the doomed [Security Officer] position.” Thompson III,
832 F.3d at 342. Thompson was given neither notice of the
transfer nor an opportunity to challenge it. Id. And the
personnel form that King signed in making the reassignment
said “only that the action fixed ‘a classification error.’” Id.
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.” Thompson III, 832 F.3d at 342 n.2 (quoting Davis v.
University of D.C., 603 A.2d 849, 852 n.8 (D.C. 1992)).
5
Third, four days later (August 27th), King informed
Thompson that his new position had been eliminated in the
reduction in force. Thompson III, 832 F.3d at 342. King
handed 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.” Id. As our court has stressed, “the form made no
mention of Thompson’s prior reassignment to the position that
had been marked for elimination[,]” and so “did not inform
Thompson of any right he might have had to challenge that
employment action.” Id.
Later that same day, King placed Thompson on paid leave
for the next several weeks. Thirty days later, Thompson’s new
position was formally terminated as part of the reduction in
force. See D.C. CODE § 1-625.5(f) (Supp. 1998). On
September 30, 1996, Thompson briefly returned to work in a
temporary position. But that position expired in January 1997,
again leaving Thompson without a job at the Lottery Board—
this time for good.
Shortly thereafter, the Lottery Board hired a new security
manager. Thompson III, 832 F.3d at 342.
B
In May 1997, Thompson filed this suit under 42 U.S.C.
§ 1983, alleging, as relevant here, that the District of Columbia
denied him his Fifth Amendment right to due process prior to
his termination from the Lottery Board.
Seven years later, the district court granted the District’s
motion for judgment on the pleadings, ruling that the
allegations in the amended complaint showed that Thompson
had received due process through the District’s grievance
6
procedures. Thompson v. District of Columbia, No. 1:97-
01015-TPJ, 2004 WL 5348862, at *4 (D.D.C. June 23, 2004).
We reversed. Thompson v. District of Columbia
(Thompson I), 428 F.3d 283 (D.C. Cir. 2005). We held that
Thompson had stated a legally viable claim under the Fifth
Amendment’s Due Process Clause by alleging that King
intentionally transferred him without notice or a pre-transfer
hearing to a position that he knew would be eliminated
imminently in the reduction in force. Id. at 288.
Two years later, the district court again dismissed
Thompson’s case. Thompson v. District of Columbia, 478
F. Supp. 2d 5 (D.D.C. 2007). With respect to Thompson’s due
process claim, the district court ruled that Thompson had no
protected property interest in his job at the time of his
termination because District of Columbia law had converted all
Lottery Board personnel to at-will employees in September
1996. Id. at 9–10.
We reversed. Thompson v. District of Columbia
(Thompson II), 530 F.3d 914 (D.C. Cir. 2008). To start, there
was no dispute that Thompson was not an at-will employee
throughout most of his time at the Lottery Board because the
District of Columbia’s Comprehensive Merit Personnel Act
(“CMPA”) provided he could be “removed from the Service
only for cause and only in accordance” with the provisions of
the CMPA. Id. at 918 (quoting D.C. CODE § 1-617.1(b)
(1981)) (emphasis omitted); see also id. (explaining that
Thompson had a property interest in his job 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”) (internal
quotation marks omitted). We then held that it was irrelevant
whether District of Columbia law changed Thompson’s status
to at-will in September 1996 because he was “constructively
7
removed from the Service at the time of [his] transfer” in
August 1996. Id. at 919. Because “Thompson was a Career
Service employee” removable only for cause at the time King
“transferred him to a doomed position in order to get rid of
him,” Thompson had been deprived of his property interest in
his job. Id. at 920.
Six and a half years later, the district court sua sponte
dismissed Thompson’s action, this time in a minute order. See
Thompson III, 832 F.3d at 343–344. The district court later
filed a written order concluding that “there are no legally
available damages for” Thompson’s due process claim.
Thompson v. District of Columbia, No. 1:97-cv-01015-RJL,
2015 WL 13673454, at *1 (D.D.C. Feb. 18, 2015). The court
reasoned 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,
and that Thompson had made no such showing.
We reversed. Thompson III, 832 F.3d at 341. We treated
the district court’s dismissal as a sua sponte entry of summary
judgment because it went beyond the pleadings.
Before addressing the legal question whether damages
were available, we rejected two attempts by the District to
relitigate whether Thompson’s due process rights were
violated.
First, the District asked us to “revisit our conclusion in
Thompson II that Thompson was deprived of his property
interest at the time of his assignment to the [doomed] Security
Officer position.” Thompson III, 832 F.3d at 344. The District
argued that “a reasonable juror could question whether the
Lottery’s employment action was a ‘transfer’ and instead
conclude” that it was merely a reclassification that did not
“trigger[] any process” under the CMPA. Id. at 344–345; see
8
CMPA, D.C. CODE § 1-617.1(b) (Replacement 1992)
(applying process protections to Career Service Employees
when they are “suspended for more than 30 days, reduced in
rank or pay, or removed from the Service”); id. § 1-606.4(b)
(requiring District of Columbia agencies to give written notice
“prior to the taking of any action which adversely affects an
employee”); see also Thompson III Oral Arg. Rec. 41:46–
42:00 (District arguing that Thompson was merely
“reclassified” and not meaningfully transferred because his job
duties and description did not change); id. at 48:33–50 (District
arguing that Thompson’s “job title was clarified,” and that he
was not “terminat[ed]” at the time of the transfer). That
argument, we held, rested “on a distinction without a
difference.” Thompson III, 832 F.3d at 345. Whether called a
transfer or a reclassification, King’s collective actions
amounted, as a matter of law, to a constructive termination
“because the Security Officer position had already been slated
for elimination” at the time of the transfer. Id.
Second, we rejected the District’s alternative argument
“that Thompson received all of the process that he was due”
because he was given a “right to challenge the elimination of
his new position in the reduction in force.” Thompson III, 832
F.3d at 345. The hearing that 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”—the transfer into the ill-fated
position—“because Thompson was never notified that he could
challenge that action.” Id. at 345–346 (emphasis added).
Thompson had “a right to notice of [the] transfer and a hearing
to challenge his transfer before it was made.” Id. at 345. He
was denied that process. Id.
On the question of damages, we agreed with the district
court that Thompson could not recover compensatory damages
9
arising from his termination if it would have occurred even had
he been given due process. Thompson III, 832 F.3d at 346. But
we disagreed that it was Thompson’s burden to prove this
counterfactual point. Id. Rather, we held that, “[o]nce 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.” Id.
(citing Brewer v. Chauvin, 938 F.2d 860, 864–865 (8th Cir.
1991) (en banc)). Yet the District had failed as a matter of law
to carry that burden. Id. at 347. So we instructed the district
court on remand to enter partial summary judgment for
Thompson as to the violation of his due process rights. Id.
We noted that only two issues remained for the district
court to address on this third remand: (i) whether the District
itself could be held liable for King’s constitutional violation;
and, if so, (ii) what damages it owed Thompson for the
wrongdoing. Thompson III, 832 F.3d at 341.
The liability issue, we noted, hinged on Monell v.
Department of Social Services, 436 U.S. 658 (1978), which
ruled that a municipality is liable under 42 U.S.C. § 1983 only
for constitutional violations caused by its policies or customs.
Thompson III, 832 F.3d at 347. Monell established that “a
municipality cannot be held liable solely because it employs a
tortfeasor”—that is, “on a respondeat superior theory.” Id.
(quoting Monell, 436 U.S. at 691). Rather, the injury must “be
inflicted by municipal ‘lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.’” Id.
(quoting Monell, 436 U.S. at 694). We emphasized that a
“single action can represent municipal policy where the acting
official has final policymaking authority over the ‘particular
area, or * * * particular issue.’” Id. at 347–348 (quoting
McMillian v. Monroe County, 520 U.S. 781, 785 (1997))
10
(citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)
(plurality opinion)); see also Jett v. Dallas Indep. School Dist.,
491 U.S. 701, 737 (1989) (Monell liability attaches where the
offending official has “final policymaking authority for [the
municipality] concerning the action alleged to have caused the
particular constitutional or statutory violation at issue.”).
With that framework in mind, we ruled that the District
was liable under Monell 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.”
Thompson III, 832 F.3d at 348.
We then “conclude[d] there [was] 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.” Thompson III, 832 F.3d at 349.
An official assuredly acts as a final policymaker, we noted,
if his or her decisions are unconstrained by policies enacted by
others and are unreviewable by other policymakers of the
municipality. See Thompson III, 832 F.3d at 348. Here, we
added, the reduction-in-force statute gave King “absolute
discretion to identify positions for abolishment * * * at the time
of Thompson’s constructive termination[,]” notwithstanding
any other provision of law. Id. at 349 (formatting modified).
The law also cemented as “final” King’s determination that a
Lottery Board position be terminated. Id. (quoting D.C. CODE
§ 1-625.5(b) (Supp. 1998)). That meant that the law “expressly
exempted King from the ordinary requirements of the CMPA
in making [those] decisions,” including the requirement to
provide due process. See id. at 350.
In addition, we observed, the record was “replete with
evidence that King” in practice “exercised his authority over
personnel matters without any control by other District
11
officials.” Thompson III, 832 F.3d at 349. King himself
“testified that no one supervised his decisions about personnel
actions,” and he admitted “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.” Id. All that was critical, we explained, because
“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[.]” Id.
(quoting Praprotnik, 485 U.S. at 145 (Brennan, J., concurring
in the judgment)); see also id. at 350 (“[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.”)
(quoting Ware v. Jackson County, 150 F.3d 873, 882 (8th Cir.
1998)).
“Read together,” we stressed, “the D.C. Code and King’s
testimony indicate that King’s [personnel] decisions” that
resulted in Thompson’s constructive termination without due
process “were not in fact reviewed” by anyone. Thompson III,
832 F.3d at 350. But because neither party had fully briefed
the Monell issue, we remanded so the district court could
resolve it in the first instance. Id. at 351.
C
On remand, Thompson moved for summary judgment
regarding the District of Columbia’s liability under Monell. In
December 2017, following a failed attempt at mediation, the
district court denied Thompson’s fully briefed summary
judgment motion in a minute order.
Thompson then filed a motion seeking reassignment of his
case to a judge whose docket did not foreclose a prompt trial
12
date. The district court promptly scheduled a status
conference. Thompson then filed a motion asking the district
court to explain why it denied his summary judgment motion.
On February 1, 2018, the district court denied in a minute
order Thompson’s motion for a statement of reasons regarding
its denial of his summary judgment motion. In the minute
order, “[p]ursuant to the agreement of the parties at the 1/29/18
conference,” the district court also set a briefing schedule for
the District to file a summary judgment motion of its own on
the issue of Monell liability. Minute Order, Thompson,
No. 1:97-cv-01015-RJL (D.D.C. Feb. 1, 2018).
The District of Columbia subsequently filed a motion for
summary judgment, which the district court granted, holding
that the District was not liable under Monell for King’s actions.
Thompson v. District of Columbia, No. 1:97-01015-RJL, 2018
WL 4705787 (D.D.C. Sept. 30, 2018). The court concluded
that neither District policy nor custom was the moving force
behind the violation of Thompson’s right to due process. King,
and only King, was responsible for his actions.
In so ruling, the court rejected Thompson’s three
independent theories of Monell liability.
First, the district court ruled that King was not acting as a
final policymaker for the District when he reassigned
Thompson to the Security Officer position on the eve of its
elimination. The court considered it irrelevant whether King
was a final policymaker when he “took the separate and distinct
employment action of including the position (and Thompson)
in the [reduction in force]—a decision regarding which
Thompson did receive notice and an opportunity to challenge.”
Thompson, 2018 WL 4705787, at *5.
13
The district court then concluded that, while the reduction-
in-force statute vested King with unencumbered authority to
identify positions for termination, the statute did not grant him
the same unencumbered authority to transfer Thompson into a
different position without first providing him due process. For
that reason, the district court concluded that King was not a
final policymaker unbounded by the “constraints and
requirements imposed by other personnel laws.” Thompson,
2018 WL 4705787, at *5. Specifically, the D.C. Code
mandated that King exercise his personnel authority “in
accordance with the [CMPA],” the law under which Thompson
argued that he was denied due process regarding the transfer.
Id. (quoting D.C. CODE § 2-2503 (1981)). “[T]he CMPA
should have afforded [Thompson] [procedural] protections,”
the district court reasoned, because his “reassignment
amounted to a constructive removal[.]” Id. at *6; see also
CMPA, D.C. CODE § 1-606.4(b) (Replacement 1992)
(mandating written notice “prior to the taking of any action
which adversely affects an employee”). So, the district court
concluded, the CMPA—not King’s departure from it—
represented the District’s settled policy. The district court
added that the D.C. Code also left King’s general power to
“[e]mploy other assistants and employees” “subject to the
direction and supervision of the [Lottery] Board.” Id. at *7
(quoting D.C. CODE § 2-2503 (1981)). So any authority King
had over transfers was non-final too.
Second, in a footnote, the district court rejected
Thompson’s alternative liability argument that the District
ratified King’s unlawful action by affirmatively approving both
King’s decision and the basis for it. According to the district
court, Thompson failed to identify any evidence in the record
supporting that contention.
14
Third, the district court rejected Thompson’s argument
that “King acted pursuant to a ‘custom’ that, while not
‘formally approved by an appropriate decisionmaker,’ subjects
the District ‘to liability on the theory that the relevant practice
is so widespread as to have the force of law.’” Thompson, 2018
WL 4705787, at *8 (quoting Board of County Comm’rs of
Bryan County v. Brown, 520 U.S. 397, 404 (1997)). According
to Thompson, the District had a settled “municipal custom of
retaliating” against employees, and that custom was the
moving force behind his unconstitutional termination. Id. But
the court held that Thompson failed to identify “specific facts
showing a genuine triable issue as to whether the District had a
widespread and pervasive custom or practice of denying
procedural due process” to its employees. Id.
Thompson died while this latest round in his action was
pending. We substituted his daughter, Michelle Thompson, as
the plaintiff in the case in her capacity as personal
representative of her father’s estate. Michelle Thompson
appeals the district court’s denial of plaintiff’s motion for
summary judgment and its entry of summary judgment in favor
of the District.
II
The district court had jurisdiction under 28 U.S.C. § 1331.
Our jurisdiction arises under 28 U.S.C. § 1291.
We review de novo a district court’s grant or denial of
summary judgment. Defenders of Wildlife v. Zinke, 849 F.3d
1077, 1082 (D.C. Cir. 2017). “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.”
Thompson III, 832 F.3d at 344. Summary judgment is
appropriate only “if the movant shows that there is no genuine
15
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).
Whether a particular official has final policymaking
authority for purposes of Monell liability is a question of state
law, and “the identification of those officials whose decisions
represent the official policy of the local governmental unit is
itself a legal question to be resolved by [the court].” Jett, 491
U.S. at 737.
III
A
Michelle Thompson primarily argues that the district court
erred in holding that Monell insulated the District from liability
for the personnel actions that King took to effect Thompson’s
termination. Although she advances three alternative theories
of District liability, we need only consider her first theory
because it suffices to establish the District’s responsibility for
King’s actions.
Specifically, even taking the facts in the light most
favorable to the government, the record in this case shows that
King was acting as a final policymaker on behalf of the District
when he made “the types of Lottery personnel decisions that
led to Thompson’s constructive termination” without notice or
a pre-termination hearing. Thompson III, 832 F.3d at 349. The
District empowered King to make the final policy judgments
for developing and carrying out the reduction in force at the
Lottery Board, and he used that authority to take the personnel
measures that constructively terminated Thompson without
16
due process. His relevant personnel decisions were
(i) unconstrained “by policies enacted by others,” and
(ii) unreviewable by any other authorized policymaker. See id.
at 348. So the District is liable for them under Monell.
Recall that King took three personnel actions that resulted,
as a matter of law, in Thompson’s constructive termination
without notice or a pre-termination hearing.
First, he designated a vacant Security Officer position for
elimination. Second, he transferred Thompson into that
condemned position, with no notice or pre-termination
opportunity to challenge the transfer, let alone warning that the
position was on the verge of elimination. Third, King promptly
eliminated Thompson’s new position. The parties agree that it
was “the totality” of these actions that resulted in Thompson’s
constructive termination. District Br. 22; Thompson Br. 11.
The District does not dispute that King was acting as a
final policymaker, within the meaning of Monell, when he took
the first and third of those actions. See Oral Arg. Tr. 26:16–
27:20. For good reason. King’s designation of the Security
Officer position for elimination, and his subsequent
elimination of that position, were both undertaken as part of
King’s administration of the reduction in force. And the
reduction-in-force statute specifically empowered King,
“[n]otwithstanding any other provision of law,” to “make a
final determination that a position * * * be abolished.” D.C.
CODE § 1-625.5(a)–(b) (Supp. 1998) (emphasis added). The
statute also left any individual in such a fated position without
a job, “[n]otwithstanding any rights or procedures established
by any other provision of” the CMPA. Id. § 1-625.5(c). As the
District put it, the statute gave King “absolute discretion” in
carrying out the reduction in force. Oral Arg. Tr. 26:8–12.
17
That is the stuff of which final policymakers are made. See
Thompson III, 832 F.3d at 348.
The District likewise agrees that the CMPA did not in any
way constrain King’s ability generally to transfer or reclassify
employees without pre-transfer notice or a hearing, as long as
the transfer did not amount to a demotion or a constructive
termination. See Oral Arg. Tr. 28:17–29:2. Nor has the
District denied that, in implementing the reduction in force,
King transferred or reclassified employees into different
positions solely to alter the reduction-in-force consequences
that they otherwise would face. See Oral Arg. Tr. 37:3–15 (Q:
“And you haven’t disputed for the district court or this Court
that [King] was [moving employees to insulate them from the
reduction in force], have you?” A: “I don’t think we’ve
disputed that.”). King, in fact, admitted that he “moved
employees around to avoid adverse repercussions from the
reduction in force,” and “that no one supervised his decisions
about personnel actions[.]” Thompson III, 832 F.3d at 349.
Against that backdrop, the District’s central contention is
that King lacked the policymaking authority to constructively
terminate Thompson because his transfer of Thompson into a
position slated for elimination violated the CMPA. In other
words, the District does not dispute that King was
unconstrained by the CMPA for each of the three independent
steps that added up to Thompson’s constructive removal. But,
the District argues, because this court later concluded that the
cumulative impact of those measures amounted, as a matter of
law, to a constructive termination requiring pre-transfer
process under the CMPA, King violated the District’s
“established policy” (by virtue of the CMPA) that pre-transfer
process was required. District Br. 12, 25.
That argument fails at multiple levels.
18
For starters, the issue for Monell purposes is not whether
King had the policymaking authority to constructively
terminate Thompson by way of the transfer. “Constructive
termination” is a legal label that we ascribed twelve years after
the fact to the series of personnel decisions King made that
ousted Thompson from his job. See Thompson II, 530 F.3d at
919 (“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 [reduction in force], the employee is
constructively removed from the Service at the time of the
transfer.”); see also Simpson v. Federal Mine Safety & Health
Review Comm’n, 842 F.2d 453, 461–462 (D.C. Cir. 1988)
(explaining the “[c]onstructive discharge doctrine”).
Instead, as we explained in Thompson III, the question of
Monell liability in this case turns on whether “King was a final
policymaker with regard to the types of Lottery personnel
decisions that led to Thompson’s constructive termination.”
Thompson III, 832 F.3d at 349 (formatting modified); see also
id. at 350 (“In fact, the District seems to have expressly
exempted King from the ordinary requirements of the CMPA
in making these decisions.”) (emphasis added).
The proof is all over our prior opinion. We spilled a great
deal of ink in Thompson III on King’s authority under the
reduction-in-force statute as it relates to Monell liability. See,
e.g., 832 F.3d at 350 (“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.”)
(citing reduction-in-force statute, D.C. CODE § 1-625.5(g)
(Supp. 1998)); id. (“In fact, the District seems to have expressly
exempted King from the ordinary requirements of the CMPA
in making these decisions.”) (citing reduction-in-force statute,
19
D.C. CODE § 1-625.5(a), (c) (Supp. 1998)); id. at 349 (“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. The D.C. Code further provided that King would
make a final determination that a position within the [Lottery
Board] is to be abolished.”) (formatting modified).
As we also explained, the Monell analysis focuses on each
of King’s three personnel decisions for good reason: King’s
selection and elimination of the Security Officer position in the
reduction in force were constituent elements of the constructive
termination of Thompson without due process. The three steps
were not unrelated happenstance; they were choreographed by
King to work in tandem. Like Casey at the Bat, it took all three
strikes to get Thompson out.
The effort to separate the transfer from the selection and
elimination of the Security Officer position—and then ask this
court to ignore King’s authority over everything but the
transfer—is also illogical on this record. That is because
King’s exercise of his authority to implement the reduction in
force undisputedly included “mov[ing] employees around” to
manipulate the effects of the force reduction on individuals.
Thompson III, 832 F.3d at 349. As King himself admitted, no
one supervised those transfer decisions. See id.
In any event, even were we to look only at King’s transfer
authority, that would not change anything. Critical to the
District’s argument on the transfer front is that it had an
“established policy” requiring King to provide pre-transfer
process under the CMPA if the transfer amounted to a
constructive termination. See District Br. 12, 25. But saying it
does not make it so.
20
First, recall that for twenty years after Thompson’s fateful
transfer—continuing through his last appeal—the District
argued exactly the opposite. It contended that, under District
law, the transfer was a mere administrative reclassification that
did not require any pre-transfer process under the CMPA.
Which left the reclassifying transfer fully within King’s
unilateral authority. Thompson III, 832 F.3d at 344–345;
Thompson III Oral Arg. Rec. 41:46–42:01 (arguing that
Thompson was merely “reclassified” and not meaningfully
transferred because his job duties and description did not
change); id. at 48:33–50 (arguing that Thompson’s “job title
was clarified,” and that he was not “terminat[ed]” by the
transfer). While parties are, of course, free to change their
arguments as cases proceed, they cannot change legal reality
after the fact.
Second, the District does not point to anything
corroborating its current contention that it had an established
policy in 1996 of providing pre-transfer process under the
CMPA for this sort of mid-reduction-in-force transfer. It has
not cited a single example of an employee receiving pre-
transfer process in an analogous circumstance. Instead, the
District points to Levitt v. District of Columbia Office of
Employee Appeals, 869 A.2d 364 (D.C. 2005). District Br. 30
n.13; Oral Arg. Tr. 37:17–38:21. But Levitt did not hold that
the CMPA required any such pre-transfer process. It held only
that an employee challenging his termination in a reduction in
force, who was transferred several times before his final
position was eliminated, raised non-frivolous arguments
concerning “the unusual personnel actions the employing
agency took before abolishing his position” that warranted
further examination after the fact. See Levitt, 869 A.2d at 366–
367 (emphasis omitted). The case says nothing about pre-
transfer process under the CMPA or otherwise. Nor does it
21
evidence an established policy of the kind described by the
District now.
The District’s failure to back up its contention that it had
an “established policy” in 1996 of mandating pre-transfer
notice under the CMPA if the transfer resulted in a constructive
termination closes the door on its argument that King was
simply a rogue tortfeasor. See Thompson III, 832 F.3d at 350
(“[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.”) (quoting Ware, 150 F.3d at 882); id.
(noting a mere “paper policy cannot insulate a municipality
from liability where there is evidence * * * that the
municipality was deliberately indifferent to the policy’s
violation”) (quoting Daskalea v. District of Columbia, 227
F.3d 433, 442 (D.C. Cir. 2000)).
Alternatively, the District argues that the Lottery Board’s
Human Resources Division—not King—was responsible for
providing Thompson with pre-transfer notice and an
opportunity to be heard. District Br. 21–22 (“King could not
make a policy decision binding on the District to deprive
Thompson of process that King did not have the responsibility
to provide in the first place.”). But that argument ignores the
fact that King manipulated the personnel forms by stating that
the transfer merely fixed a classification error. See id. That
was not Human Resources’ doing.
Besides, to provide pre-transfer process, Human
Resources would have to have been informed in advance by
King that, although the transfer looked like a series of
authorized reduction-in-force personnel decisions, it really was
a plan to accomplish a constructive termination. There is no
evidence that King told anyone in Human Resources what he
was up to.
22
Finally, the District argues that, apart from the CMPA, the
D.C. Code also made King’s transfer decisions “subject to the
direction and supervision of the [Lottery] Board.” District
Br. 31 (internal quotation marks omitted); D.C. CODE
§ 2-2503(d) (Replacement 1994). As the District would have
it, the Lottery Board’s supervisory power over King made the
Board, not King, the final policymaker when it came to
constructive terminations during the reduction in force.
That argument seeks to fight lost battles. We have already
held that the Monell analysis requires us to look at the full
panoply of personnel decisions that King made to
constructively terminate Thompson without due process during
the reduction in force. See Thompson III, 832 F.3d at 349–350.
As to those decisions—the very decisions at issue in this case—
the D.C. Code empowered King to make final and
unreviewable decisions about which positions would be
abolished. See D.C. CODE § 1-625.5(a)–(b) (Supp. 1998)
(vesting in King, as “personnel authority,” the power to
“identify positions for abolishment” and “make a final
determination that a position * * * be abolished”). The Lottery
Board had no role to play. King “alone” moved employees
around to manipulate the consequences of those decisions, with
“no one supervis[ing] [those] personnel actions[.]”
Thompson III, 832 F.3d at 349. The District’s argument
depends entirely on divorcing Thompson’s transfer from its
accompanying reduction-in-force personnel decisions and
from the realities of municipal decisionmaking. Monell does
not require us to blink away reality. See id. (Monell analysis
“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.”).
23
Because the record in this case demonstrates that King had
the sole and unreviewable authority to make the series of
personnel decisions, including the transfer, that together
amounted to Thompson’s constructive termination without due
process, he was a final policymaker for the District within the
meaning of Monell. For that reason, the district court is
directed to enter summary judgment in favor of Michelle
Thompson on the question of Monell liability.3
B
In addition to seeking reversal of the district court’s
summary judgment ruling, Michelle Thompson requests that
we reassign this case on remand to a different judge.
We declined this same request in our last decision.
Thompson III, 832 F.3d at 351 (noting that “impartiality, the
appearance of justice, and the possibility of waste and
duplication are the three factors” governing reassignment
requests) (citing United States v. Wolff, 127 F.3d 84, 88 (D.C.
Cir. 1997)). Reassignment is “unusual” relief for the court to
provide. Wolff, 127 F.3d at 88. The district court’s handling
of the case did not warrant it before. See Thompson III, 832
F.3d at 351. Nor does it now. The district court acted in a
timely manner to address the Monell issue and its ultimate
summary judgment decision was explained to the parties and
3
Michelle Thompson separately argues that the district court
committed reversible error in denying Thompson’s motion for a
statement of reasons regarding its minute-order denial of his motion
for summary judgment on the issue of Monell liability. But the
district court did eventually explain itself in a memorandum opinion
when it granted summary judgment to the District. Anyhow, our
decision on Monell liability obviates any need to address that
procedural objection.
24
was thoughtful in its reasoning. This court’s disagreement on
the law says nothing about the district court’s responsible
execution of its duties.
That said, we are not unsympathetic to Michelle
Thompson’s concerns and frustration with how long this case
has taken to resolve. Her father filed this suit twenty-three
years ago. He unfortunately has not survived to see its
resolution. Yet we remain confident that, as with the last
remand, the district court will act expeditiously. Thompson III,
832 F.3d at 351. After all, only one issue remains to be
resolved—a calculation of the damages owed by the District
for King’s violation of Thompson’s due process rights. See id.
at 341.
IV
For all of those reasons, the district court erred in granting
summary judgment for the District of Columbia and in denying
summary judgment for James and Michelle Thompson on the
question of Monell liability. As a matter of law, King acted as
a final policymaker when he took the series of personnel
actions that resulted in Thompson’s constructive termination
without due process. That means that the District of Columbia
is responsible for the wrong. We direct the district court to
enter summary judgment for Michelle Thompson on the
question of Monell liability, and we remand for further
proceedings to determine the amount of damages owed,
consistent with this opinion.
So ordered.