Baumann v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2015 Decided August 4, 2015

No. 13-7189

KRISTOPHER BAUMANN, CHAIRMAN OF THE FRATERNAL
ORDER OF POLICE, METROPOLITAN POLICE DEPARTMENT
LABOR COMMITTEE,
APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01189)

Anthony M. Conti argued the cause for appellant. With him
on the briefs was Daniel J. McCartin. Gregory T. Lawrence
entered an appearance.

Mary L. Wilson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Irvin B. Nathan,
Attorney General at the time the brief was filed, Todd S. Kim,
Solicitor General, and Loren L. AliKhan, Deputy Solicitor
General.
 2

Before: GARLAND, Chief Judge, and ROGERS and PILLARD,
Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Pursuant to Metropolitan Police
Department (“MPD”) General Order 204.01, Part VI-C-1, the
Chief of Police sanctioned Kristopher Baumann for releasing to
the media a recording of Emergency Response Team (“ERT”)
radio communications that occurred during an incident in which
a suspect exchanged gunfire with the police and barricaded
himself inside a private home. The General Order does not
prevent members of the MPD from speaking publicly about
events like the barricade incident. Part VI-C-1, however,
prohibits the public disclosure of confidential MPD information
whose release may jeopardize ongoing law enforcement
investigations, and two such criminal investigations related to
the barricade were pending when Baumann gave the recording
to reporters shortly after the incident. Baumann sued the
District of Columbia and MPD officials on the ground that he
was being punished for protected speech in violation of the First
Amendment to the United States Constitution and the District of
Columbia Whistleblower Protection Act (“DCWPA”), and now
appeals the grants of summary judgment to the defendants on his
First Amendment and DCWPA claims and dismissal of his
DCWPA claim against the individual defendants.

Baumann has conceded that an MPD Order requiring
officers to notify MPD before releasing confidential MPD
information that may jeopardize ongoing law enforcement
investigations would be constitutional, as would a sanction for
failing to do so. His only contention under the First Amendment
is that his punishment was unconstitutional because the MPD
has not shown that release of the ERT recording could or did
impede any law enforcement investigation or otherwise
 3

disrupted the MPD’s operations. We hold that Part VI-C-1 as
applied to Baumann is sufficiently tailored temporally and in
scope to enable law enforcement better to investigate criminal
activity and police operations implicating police safety, and that
the MPD’s interests in non-disclosure outweigh Baumann’s and
the public’s interests in releasing the recording at the time he
did. Part VI-C-1 bars disclosure of confidential information
only during ongoing investigations and does not otherwise bar
speech about police activity, including the barricade incident.
And releasing the confidential ERT recording could have
harmed pending criminal investigations because it contained
potentially critical information about the barricade and, only if
kept confidential, could it provide a means to gauge other
evidence offered by witnesses and persons involved in the
incident. Baumann’s statutory challenge under the pre-2010
DCWPA is unavailing for failure to identify a “protected
disclosure,” D.C. Code § 1-615.52(a)(6) (2001). Accordingly,
we affirm.

I.

MPD General Order 204.01 states that it is the policy of the
MPD that officers “shall make available to the news media
timely information pertaining to matters within the scope of the
[MPD], except in those rare instances where the law
enforcement process or fair administration of justice might be
hampered by premature disclosure of such information.” Gen.
Order 204.01, Part II. Consistent with that policy, officers “may
provide the basic facts, unless otherwise restricted by this
General Order, concerning an event or incident of which they
have sufficient knowledge, in conjunction with a Unit Official’s
approval, the rank of lieutenant or above.” Id. Part VI-A-1.
And they may, for example, generally disclose to the public
“[f]actual information concerning an individual involved in an
incident” and the “[c]ircumstances surrounding an incident.” Id.
 4

Part VI-B-1 & 2. But the Order specifies in Part VI-C that
certain information cannot be released to the public on an
officer’s own initiative. In particular, Part VI-C-1 prohibits the
disclosure of “[c]onfidential information that may jeopardize the
successful conclusion of an investigation.” Likewise, Part
VI-C-7 states that “[a]ll documents not listed as releasable shall
be closed to public inspection.”

Kristopher Baumann is an MPD police officer who was
serving full time as Chairman of the Fraternal Order of Police
Metropolitan Labor Committee (“union”) on May 30, 2009,
when the ERT was called to the scene of a barricade incident
during which gunfire had been exchanged with the police.
Several ERT members expressed concern to Wendell
Cunningham, an ERT member and vice-chairman of the union,
that higher-ranking officials, including the Mayor, had
demanded that tear gas be used during the barricade,
notwithstanding the recognized hazards of, and their lack of
training for, its use in such situations. Cunningham and other
police officers informed Baumann, who was not at the barricade,
of the tear-gas issue and shared with him other safety concerns
about how the incident had been handled. During a union
leadership meeting on June 1, Baumann told Cunningham to
initiate a union safety committee investigation into the incident.

The following day, a reporter told Baumann that he had
received conflicting information from MPD officials about
whether there had been an order to use tear gas at the barricade
and suggested that Baumann should review the recording of the
ERT’s communications during the incident. Baumann told
Cunningham to get the ERT recording, and Cunningham sent an
email to the MPD’s Office of Unified Communications
(“OUC”) requesting the recording for “incident review”
purposes. On June 5, the OUC gave Cunningham a copy of the
recording upon his signing a receipt stating “[i]t is understood
 5

[that] the following recording[] [is] for internal investigation
only . . . , there are no public requests for . . . the[] incident[],”
and “the recording [] will not be released to the public without
prior, written approval from the [OUC].” The same day,
Baumann listened to the recording and released a portion of it to
two reporters.

On June 11, Baumann emailed Assistant Chief Alfred
Durham and others, forwarding and commenting on a chain of
emails among MPD officials regarding officers’ safety concerns
at the barricade. Baumann wrote that the email chain revealed
that Assistant Chief Patrick Burke had violated the Collective
Bargaining Agreement (“CBA”) between the MPD and the
union — by, for example, failing to recognize the legitimacy of
the request of the union safety committee to meet with him and
Assistant Chief Durham and stating that the committee is subject
to the chain of command — and the D.C. Code.

In early June, Chief of Police Cathy Lanier ordered the
Internal Affairs Division (“IAD”) to investigate the barricade
incident, including, in particular, how the media had obtained
the ERT recording. The IAD interviewed Baumann twice. On
June 19, Baumann explained it was his understanding that the
IAD investigation related to certain information that had been
given to the union safety committee to determine “whether or
not there were any violations or threats to Public Safety.”
Baumann told the IAD that his interview responses constituted
a protected disclosure. Noting that he was not present at the
barricade, Baumann otherwise declined to answer questions that
he claimed impermissibly related to his duties as union
chairman. On July 14, after being told he would be charged
with failing to obey orders and directives if he did not respond
to the IAD’s questions, Baumann admitted that he had given the
ERT recording to two reporters.
 6

The IAD recommended that Baumann be disciplined for
releasing the ERT recording to the media without prior
authorization, and he was served with a Notice of Proposed
Adverse Action on October 9, 2009. The Final Notice of
Adverse Action, dated December 29, 2009, ordered Baumann
suspended for five working days because he had violated (1)
Part VI-C-1 and Part VI-C-7 of General Order 204.01 by
releasing the ERT recording to the media without prior written
approval from the OUC or the MPD, and (2) General Order
120.21, Part A-25, which, as relevant, prohibits “[a]ny conduct
not specifically set forth in this order, which is prejudicial to the
reputation and good order of the police force.” Baumann
appealed to Chief Lanier. On February 5, 2010, the Chief
affirmed the first charge under Part VI-C-1, noting that “[t]he
recording [Baumann released] was related to two separate
ongoing criminal investigations” involving the barricade, one
within the MPD and another by the U.S. Attorney’s Office, but
she dismissed the second, prejudicial-conduct charge and
reduced Baumann’s suspension to three days. The Chief’s
appeal decision did not discuss Part VI-C-7 (the residual
confidentiality clause) of General Order 204.01, and the MPD
does not rely upon it on appeal, so our decision rests only on
Part VI-C-1.

Baumann sued the District of Columbia and several MPD
officials. As relevant, he alleged that they violated the DCWPA
by retaliating against him for his request that Cunningham
initiate a safety committee investigation of the barricade, his
June 11, 2009 email to MPD officials, and answers he gave
during his two IAD interviews, and that they violated the First
Amendment by investigating and disciplining him for releasing
the ERT recording. The defendants moved to dismiss, and both
parties filed motions for summary judgment.

The district court dismissed Baumann’s DCWPA claim
 7

against the individual defendants because the statute in effect at
the time of the underlying events provided a cause of action only
against the District of Columbia, and the later amendment
allowing suits against individuals was not retroactive. Baumann
v. District of Columbia (“Baumann I”), 775 F. Supp. 2d 191,
194–96 (D.D.C. 2011). The court also granted summary
judgment to the defendants because no reasonable jury could
conclude that Baumann made a “protected disclosure” under the
DCWPA. Baumann v. District of Columbia (“Baumann II”),
933 F. Supp. 2d 19, 23 (D.D.C. 2013). In addition, the court
granted summary judgment to the defendants on Baumann’s
First Amendment claim. The court ruled that no reasonable jury
could conclude his allegedly protected activity was a substantial
or motivating factor in the purportedly retaliatory acts. Id. at
36–41. The court further concluded that General Order 204.01
was not an unlawful prior restraint on his speech because the
MPD’s strong interest in regulating the release of the narrow
category of information that would affect the confidentiality and
effectiveness of ongoing criminal investigations outweighed
Baumann’s and the public’s interest in releasing such
information when he did, especially considering that the General
Order did not restrict his ability to express his personal view on
safety concerns related to the barricade incident and was time-
limited to only when the disclosure might harm an ongoing
investigation. Baumann v. District of Columbia (“Baumann
III”), 987 F. Supp. 2d 68, 77–82 (D.D.C. 2013).

Baumann appeals the grants of summary judgment on his
First Amendment and DCWPA claims and the dismissal of his
DCWPA claim against the individual defendants. Our review
is de novo. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir.
2011); Wilson v. Pena, 79 F.3d 154, 160 & n.1 (D.C. Cir. 1996).
Summary judgment is appropriate only “if the movant shows
that 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.
 8

P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). The court must view the evidence in the light most
favorable to the nonmoving party, draw all reasonable
inferences in his favor, and eschew making credibility
determinations or weighing the evidence. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Calhoun, 632
F.3d at 1261.

II.

Baumann contends that the defendants (hereafter
“appellees”) violated the First Amendment by punishing him for
criticizing the MPD through the protected speech of releasing
the ERT recording and communicating with the media. In
particular, he maintains that the MPD unlawfully undertook the
2009 IAD investigation and disciplined him in response to his
release of the ERT recording. On appeal, it does not matter
whether Baumann’s First Amendment claim is styled as one
alleging unlawful retaliation or prior restraint. Compare
O’Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998), with
Sanjour v. EPA, 56 F.3d 85, 90 (D.C. Cir. 1995) (en banc). He
acknowledged during oral argument that the MPD could create
a constitutional policy under which individual officers who want
to release documents must alert the MPD in advance. Oral Arg.
Rec. 7:14–8:28 (Mar. 19, 2015). He also acknowledged that
there may be situations in which the MPD, as employer, could
punish its officers for disclosing confidential information whose
release did, in fact, undermine an ongoing investigation. Id. He
contends only that the MPD could not constitutionally
investigate and punish him for releasing this ERT recording
because the MPD has not shown that its release plausibly could
or did impede any investigation, or otherwise disrupted the
MPD’s operations, and the balancing of interests under
Pickering v. Board of Education of Township High School
District 205, 391 U.S. 563, 568 (1968), tips in his favor.
 9

As a general matter, “Pickering and its progeny continue to
be the meter by which the First Amendment rights of public
employees are measured.” Tygrett v. Barry, 627 F.2d 1279,
1282 (D.C. Cir. 1980); see, e.g., Lane v. Franks, 134 S. Ct.
2369, 2377–78 (2014). First, a court must determine whether
the employee spoke as a private citizen, addressing matters of
public concern. See Garcetti v. Ceballos, 547 U.S. 410, 418
(2006); Orange v. District of Columbia, 59 F.3d 1267, 1272
(D.C. Cir. 1995). Appellees do not contest that this prerequisite
is satisfied. As the district court found, Baumann III, 987 F.
Supp. 2d at 75–76, Baumann spoke as a union official, not as a
police officer, when he disclosed the ERT recording, see Fuerst
v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006). Further, his speech
— releasing an ERT recording that he considered to reveal
security risks to the public and MPD officers arising from the
MPD’s handling of barricade situations — was of public
concern. See Connick v. Myers, 461 U.S. 138, 146 (1983);
O’Donnell, 148 F.3d at 1133–34; Sanjour, 56 F.3d at 91.
Second, if the “private citizen/public concern” requirement is
met and Pickering applies, then the court “must ‘arrive at a
balance between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of
the [government], as an employer, in promoting the efficiency
of the public services it performs through its employees.’”
United States v. Nat’l Treasury Emps. Union (“NTEU”), 513
U.S. 454, 465–66 (1995) (first alteration in original) (quoting
Pickering, 391 U.S. at 568). In performing that balancing,
“courts must consider whether the challenged statute or
regulation is tailored to address the harm that the government
allegedly aims to protect.” Sanjour, 56 F.3d at 97; see NTEU,
513 U.S. at 474–75; Weaver v. U.S. Info. Agency, 87 F.3d 1429,
1439 (D.C. Cir. 1996). “[T]he government bears the burden of
justifying its adverse employment action . . . .” NTEU, 513 U.S.
at 466. In particular, “when the [g]overnment defends a
regulation on speech as a means to . . . prevent anticipated
 10

harms, it . . . must demonstrate that the recited harms are real,
not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.” Id. at 475
(internal quotation marks omitted). We conclude that appellees
have met their burden for the following reasons.

It cannot be gainsaid that the MPD has a weighty interest in
preserving confidential information that, if released publicly,
could jeopardize the successful conclusion of a criminal
investigation. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1297
(10th Cir. 2009); Swartzwelder v. McNeilly, 297 F.3d 228, 239
(3d Cir. 2002) (Alito, J.); Hanneman v. Breier, 528 F.2d 750,
754 (7th Cir. 1976). Congress and the judiciary have recognized
this and related interests in other contexts. In Boehner v.
McDermott, 484 F.3d 573, 578 (D.C. Cir. 2007), the en banc
court noted that “[t]here are many federal provisions that forbid
individuals from disclosing information they have lawfully
obtained,” and “[t]he validity of these provisions has long been
assumed.” Id. “Grand jurors, court reporters, and prosecutors,
for instance, may ‘not disclose a matter occurring before the
grand jury.’” Id. (quoting FED. R. CRIM. P. 6(e)(2)(B)).
“Judicial employees may not reveal confidential information
received in the course of their official duties.” Id. (citing CODE
OF CONDUCT FOR JUDICIAL EMPLOYEES CANON 3D). And the
Freedom of Information Act protects from disclosure records
relating to law enforcement investigations and proceedings. 5
U.S.C. § 552(b)(7).

Appellees have not argued that Boehner is dispositive here,
or that Baumann’s First Amendment challenge should be
resolved without looking to his and the public’s interests in
disclosure. And it is unnecessary to decide whether Baumann’s
disclosure of confidential material relevant to pending
investigations may be barred without consideration of those
interests in disclosure. See Boehner, 484 F.3d at 579. Even
 11

accepting the district court’s determination that the disclosure
addressed a matter of public concern, the MPD’s interest in
preventing the potential jeopardizing of ongoing investigations
is strong enough to outweigh Baumann’s and the public’s pro-
disclosure interests in immediate release of the ERT recording
under Pickering. Baumann, as a police officer and union
official, and the public have a strong interest in his speaking to
the public about safety issues related to the MPD’s management
of barricade situations, see Sanjour, 56 F.3d at 94; Baumann III,
987 F. Supp. 2d at 77, and, aside from releasing the recording,
Baumann and other officers were free to do so. But the MPD’s
“interest in protecting the integrity of [the] investigation[s]” by
preventing the premature and unauthorized disclosure of the
ERT’s communications “clearly outweighed whatever interest
[Baumann and the public] had in [his] disclosing [the ERT
recording itself]” at the particular time he did. Orange, 59 F.3d
at 1273; see also Dixon, 553 F.3d at 1306–09. That is, the
public was not denied information about the barricade incident,
as those who were present or otherwise informed of it were free
to discuss it publicly, as they did, with the exception here that
the recording of the ERT’s communications was confidential
during the pendency of related criminal investigations.

The ERT recording of the barricade incident falls squarely
within the definition of confidential information that may
jeopardize the successful conclusion of an investigation. As the
name “Emergency Response Team” indicates, the ERT is a
specialized tactical unit that responds to ongoing, highly
dangerous, emergency law enforcement situations, and, as here,
the ERT’s recordings are often of communications among ERT
members who are observing a violent crime in progress. Such
recordings can reveal information about the location, nature, and
timing of actions by the suspect and the police as well as of
other individuals — including confederates and witnesses — at
the scene. Premature release of such information can, among
 12

other things, tip off potential suspects and others that the MPD
has a contemporaneous recording of the events and thereby
jeopardize the MPD’s ability to use that recording to verify the
accuracy and credibility of eyewitness testimony untainted by
those witnesses having learned what is contained in the
recordings. Cf. Orange, 59 F.3d at 1273. Also, of particular
interest to Baumann, premature release of this ERT recording
could have interfered with the MPD’s efforts to resolve whether
an order to use tear gas had been given, and if so, under what
circumstances, as well as to find out whether high-ranking
officials outside the chain of command had improperly
interfered with the ERT’s handling of the incident.

It is true, as Baumann emphasizes on appeal, that a
government employer “must demonstrate that the recited harms
are real, not merely conjectural, and that the regulation will in
fact alleviate these harms in a direct and material way.” NTEU,
513 U.S. at 475 (internal quotation marks omitted); accord
Sanjour, 56 F.3d at 98. But this does not require the
government to “allow events to unfold to the extent that the
disruption . . . is manifest before taking action.” Connick, 461
U.S. at 152. That is, “a showing of actual disruptiveness is not
required; a government employer is allowed to consider the
potential disruptiveness of the employee’s speech.” Lalowski v.
City of Des Plaines, — F.3d — , No. 12-3604, 2015 WL
3756412, at *6 (7th Cir. June 17, 2015) (internal quotation
marks omitted). A recording of the ERT’s communications
during an incident involving MPD officers’ exchanging gunfire
with a suspect who barricaded himself inside a private home is
manifestly the kind of information that would be significant in
follow-up investigations, regardless of whether it ultimately
proved to be decisive in resolving a critical issue or evaluating
received evidence. Premature disclosure of the ERT recording
“carrie[d] the clear potential for undermining” the ongoing
investigations, Connick, 461 U.S. at 152, and thus endangered
 13

the MPD’s effective operations. See id. at 152–53. “We think
it is sufficient in this case that . . . [appellees] established that
the [recording’s release] could very well have an unfavorable
impact on the [ongoing investigations].” Zook v. Brown, 865
F.2d 887, 893 (7th Cir. 1989); see Lalowski, 2015 WL 3756412,
at *6; Dixon, 553 F.3d at 1306–07.

Baumann’s suggestion that there is a material dispute about
whether disclosure of the ERT recording might be harmful to the
ongoing investigations lacks merit. He relies on Officer Charles
Yarbaugh’s testimony that release of the ERT recording would
not be detrimental to any of the ERT’s operations. This
overlooks that Yarbaugh spoke only to whether the safety of the
ERT officers would be jeopardized by release of the recording
(e.g., by disclosing non-public tactical techniques or codes); he
did not comment about whether such disclosure would affect the
ongoing investigations of the barricade incident by tipping off
potential witnesses about the content of the MPD’s evidence.
And ERT recordings like the one at issue are likely to be useful
during related investigations because they frequently include
officers’ radio chatter describing the scene and the location of
the suspect and confirm whether the police discharged their
weapons before or after a suspect fired at them. Such
information also can be used to gauge the credibility of
testimony provided by the suspect, officers, and witnesses about
the emergency situations the recordings memorialize, and may
be of use in investigations relating to whether officers were
justified in using force.

The General Order’s restriction on Baumann’s disclosure of
the ERT recording is narrow and time-limited, with an obvious
“‘fit’ between the government’s purported interest” and the
restriction. See Sanjour, 56 F.3d at 95. The Order lists many
other kinds of information that may be publicly disclosed. See
Gen. Order 204.01, Part VI-A & VI-B. Indeed, the MPD has
 14

acknowledged that Baumann was only prohibited from releasing
the ERT recording on his own initiative at the time he did and
was free to talk with anyone in or outside of the MPD about the
barricade situation even though the investigations were ongoing.
See Appellees’ Br. 46. The record makes clear he did so, when
he told the safety committee to investigate, when he sent an
email to Assistant Chiefs Durham and Burke, and when he
spoke with a reporter about the barricade incident. Moreover,
the restriction under Part VI-C-1 applies only to “[c]onfidential
information that may jeopardize the successful conclusion of an
investigation,” which the MPD interprets to mean that it applies
only while an investigation is ongoing. See Appellees’ Br. 47.
Baumann was at most only prohibited from releasing the ERT
recording on his own initiative while the barricade-related
investigations were pending. And he makes no claim that he
alerted any MPD officials of his intention to disclose the ERT
recording to the media, much less sought permission to release
it only days after the barricade incident. Consequently, Part VI-
C-1 of General Order 204.01 as applied to Baumann by the
Chief of Police is tailored to the MPD’s justifications for non-
disclosure and does not unnecessarily burden Baumann’s and
the public’s interests in speech about the barricade. See Farhat
v. Jopke, 370 F.3d 580, 598 (6th Cir. 2004).

For these reasons, we conclude that the ERT recording was
within the General Order’s ex ante bar against disclosure of
confidential information that may jeopardize ongoing
investigations and that Baumann’s sanction for disobeying that
rule did not violate his First Amendment rights.

III.

The DCWPA, D.C. Code § 1-615.51 et seq., provides that
“[a] supervisor shall not . . . retaliate against an employee
because of the employee’s protected disclosure.” Id.
 15

§ 1-615.53(a); see Wilburn v. District of Columbia, 957 A.2d
921, 924 (D.C. 2008). To prove a violation of the DCWPA, an
employee must demonstrate “by a preponderance of the
evidence [1] that [he] made a protected disclosure, [2] that a
supervisor retaliated or took or threatened to take a prohibited
personnel action against [him], and [3] that [his] protected
disclosure was a contributing factor to the retaliation or
prohibited personnel action.” Freeman v. District of Columbia,
60 A.3d 1131, 1141 (D.C. 2012) (internal quotation marks
omitted). Pursuant to the DCWPA in effect at the time of the
events underlying Baumann’s lawsuit, the term “protected
disclosure” means

any disclosure of information, not specifically
prohibited by statute, by an employee to a supervisor or
a public body that the employee reasonably believes
evidences: (A) [g]ross mismanagement; (B) [g]ross
misuse or waste of public resources or funds; (C)
[a]buse of authority in connection with the
administration of a public program or the execution of
a public contract; (D) [a] violation of a federal, state, or
local law, rule, or regulation, or of a term of a contract
between the District government and a District
government contractor which is not of a merely
technical or minimal nature; or (E) [a] substantial and
specific danger to the public health and safety.

D.C. Code § 1-615.52(a)(6) (2001); see Payne v. D.C. Gov’t,
722 F.3d 345, 350 (D.C. Cir. 2013). A “supervisor” is “an
individual employed by the District government,” D.C. Code
§ 1-615.52(a)(8) (2001), who has the authority “to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibility to direct them, or
to evaluate their performance, or to adjust their grievances, or
effectively to recommend such action, if . . . the exercise of
 16

[such] authority . . . requires the use of independent judgment,”
id. § 1-617.01(d); see id. § 1-615.52(a)(8), or who has the
authority “to effectively recommend or take remedial or
corrective action for the violation of a law, rule, regulation or
contract term, or the misuse of government resources that an
employee may allege or report pursuant to this section, including
without limitation an agency head, department director, or
manager,” id. § 1-615.52(a)(8). The term “[p]ublic body”
includes “[a]ny federal, District of Columbia, state, or local law
enforcement agency, prosecutorial office, or police or peace
officer,” as well as “[a]ny federal, District of Columbia, state, or
local regulatory, administrative, or public agency or authority or
instrumentality of one of these agencies or authorities.” Id.
§ 1-615.52(a)(7)(C)–(D).

On appeal, Baumann points to three alleged protected
disclosures under the DCWPA: (1) his request that Cunningham
initiate a safety committee investigation of the barricade; (2) in
his June 11, 2009 email to MPD officials; and (3) his statements
during his two interviews with the IAD. Baumann II, 933 F.
Supp. 2d at 30. With respect to Baumann’s allegation that he
made a protected disclosure by relaying the dangerous actions
at the barricade to Cunningham and the safety committee and
ordering the initiation of a safety committee investigation,
Baumann did not disclose any safety issues to Cunningham; it
was Cunningham who alerted Baumann to the concerns related
to the barricade. Moreover, the union’s safety committee is not
a public body under the DCWPA because it consists entirely of
union officials, and it is not a “supervisor” because, even if it
had the “authority to effectively recommend . . . remedial or
corrective action” to the MPD, it is not “an individual employed
by the District government,” D.C. Code § 1-615.52(a)(8) (2001).
Finally, although Baumann testified at a D.C. Public Employee
Relations Board (“PERB”) hearing that the union’s committee
is the de facto joint safety committee — a committee provided
 17

for by the CBA and comprised of three individuals appointed by
MPD management and three individuals appointed by the union
— he acknowledged that there were no MPD representatives on
the committee and that the MPD had never convened a joint
committee meeting. Baumann has not explained how a
committee comprised entirely of union officials is a District
agency or an “instrumentality” of the MPD. See Baumann II,
933 F. Supp. 2d at 31–32.

Baumann’s June 11, 2009 email to Assistant Chiefs Durham
and Burke was not a “protected disclosure” because Baumann
did not disclose any safety concerns but rather re-sent an email
to those who had already received it, without adding any
information about the barricade that was not, according to
Baumann, already known to the media. In opposing summary
judgment, Baumann acknowledged that he “started receiving
calls from the media on Sunday,” May 31, 2009, about the
barricade incident — specifically regarding “concerns about the
command structure there,” the involvement of hostage
negotiators even though their unit had recently been disbanded,
and a possible “order to deploy gas.” Ex. 2 to Pl.’s Mem. in
Opp’n to Defs.’ Mot. for Summ. J., PERB Hr’g Tr. 1471–73
(Feb. 23, 2010). As the D.C. Court of Appeals has held, the
disclosure of information about which there is “public
knowledge” and “vocalized public concern” is not protected
under the DCWPA in effect at the time of the underlying events
here. Williams v. District of Columbia, 9 A.3d 484, 489 (D.C.
2010). The now-amended statute, see Whistleblower Protection
Amendment Act of 2009, D.C. Law 18-117 (Mar. 11, 2010), 57
D.C. Reg. 896 (Jan. 22, 2010); 57 D.C. Reg. 3,150 (Apr. 16,
2010), protects the disclosure of information without regard to
the “prior disclosure made to any person by an employee.” D.C.
Code § 1-615.52(a)(6) (2010). But even assuming it
encompasses Baumann’s disclosure, that amendment does not
apply retroactively, see Payne, 722 F.3d at 352–53. Moreover,
 18

Baumann does not maintain that violations of the CBA fall
within the scope of § 1-615.52(a)(6)(D) (2001), and his
comments in the email about violations of law are insufficient
to render the email a protected disclosure. His failure in the
email, in the district court, and in his briefs on appeal to point to
a specific law, rule, or regulation that was violated is fatal to his
claim. See District of Columbia v. Poindexter, 104 A.3d 848,
858 (D.C. 2014) (citing Langer v. Dep’t of Treasury, 265 F.3d
1259, 1266 (Fed. Cir. 2001)).

Finally, in Baumann’s first IAD interview he refused to
answer questions about the barricade incident or the recording
and did not disclose anything, and with respect to the second
interview, he has not identified what previously undisclosed
safety concerns he revealed to the IAD. The issues Baumann
discussed in the second interview — namely, the role played by
a recently disbanded team of hostage negotiators and the alleged
order to use tear gas — were, as Baumann acknowledged, see,
e.g., Ex. 2 to Pl.’s Mem. in Opp’n to Defs.’ Mot. for Summ. J.,
PERB Hr’g Tr. 1471–73 (Feb. 23, 2010), already known to the
media. So their alleged disclosure was not protected under the
then-extant DCWPA. See Williams, 9 A.3d at 489–90. And,
again, to the extent an amendment to the DCWPA might protect
them, see D.C. Code § 1-615.52(a)(6) (2010), it is not
retroactive. See Payne, 722 F.3d at 352–53.

Because Baumann did not show that he made a “protected
disclosure,” his DCWPA claim against the individual appellees
and the MPD fails, and we affirm the judgment for appellees on
Baumann’s statutory claim. Consequently, we do not reach the
questions whether individual supervisors were subject to suit
under the Act as originally enacted and whether the amendment
providing for such liability applies retroactively.

Accordingly, we affirm the judgment of the district court.