United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 1998 Decided July 28, 1998
No. 97-7129
Philip A. O'Donnell,
Appellant
v.
Marion S. Barry, Jr., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv02195)
Robert C. Seldon, argued the cause for appellant, with
whom Joanne Royce was on the briefs. Sarah L. Levitt
entered an appearance.
Donna M. Murasky, Assistant Corporation Counsel, ar-
gued the cause for appellees, with whom John M. Ferren,
Corporation Counsel, and Charles L. Reischel, Deputy Corpo-
ration Counsel, were on the brief. Jo Anne Robinson, Princi-
pal Deputy, entered an appearance.
Before: Wald, Sentelle and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Philip O'Donnell, a career officer in
the District of Columbia's Metropolitan Police Department,
has brought suit against the District of Columbia, the Mayor,
and the Chief of Police. O'Donnell claims that his transfer
from the job of Deputy Chief of Police for Investigative
Services to the (less desirable) job of head of the Depart-
ment's Property Division, followed by his demotion to the
rank of captain and the position of district patrol supervisor,
violated his free speech and due process rights under the
Constitution. The district court dismissed all of O'Donnell's
claims, except for one of the due process claims, as to which it
granted summary judgment; O'Donnell has appealed. We
affirm, except as to one element of O'Donnell's First Amend-
ment claim, which we believe requires further factual develop-
ment.
I. Background
O'Donnell's account of the events surrounding his transfer
and demotion is set out below. Many of the facts he recounts
are fiercely contested by the defendants; however, because
the plaintiff's claims must be taken as true on a motion to
dismiss, and the facts on the basis of which the district court
granted summary judgment are not contested, we assume
them to be true for purposes of the appeal as well.
O'Donnell began his career with the Police Department
almost three decades ago, in 1969. Over the years, he rose
through the ranks, until, in January 1995, he was appointed
D.C. Deputy Chief of Police for the Investigative Services
Bureau of the D.C. Police Department. This was a very
senior position; O'Donnell had authority over offices special-
izing in a range of high-profile criminal matters, including the
Homicide Branch (a fact whose importance will soon become
clear). In his new position, O'Donnell reported to the then
Assistant Chief of Police for the Patrol Services Bureau,
Larry Soulsby; Soulsby, in turn, reported directly to the
Chief of Police. O'Donnell avers in his complaint that he did
an excellent job during his tenure, making a number of
important reforms in the work of the offices under his
command.
The first signs of trouble came in May of 1995, when
Soulsby called O'Donnell into his office to discuss a newspa-
per article that reported that the Police Department had
failed to resolve a total of 123 unexplained deaths of African-
American women over a ten-year period. The article had
caused considerable public controversy, and Soulsby was "in-
censed" because he believed that the story had been leaked
by sources within the Police Department--specifically, by
Captain William J. Hennessy, the head of the Homicide
Branch, who was O'Donnell's immediate subordinate. O'Don-
nell denied that Hennessy was the source of the news report,
and added that the Homicide Branch was aware of the
unsolved homicides and was already conducting an investiga-
tion. According to O'Donnell, Soulsby "responded angrily
that the article was untrue and ordered that nothing should
be done to investigate the allegations." O'Donnell strongly
disagreed, noting that a serial killer might be involved; at a
routine staff meeting later in the day, the Chief of Police,
Fred Thomas, ordered an investigation.
Two months later, Thomas retired and Soulsby was ap-
pointed interim chief of police. The week after his appoint-
ment, O'Donnell sent him a long memorandum, titled "Setting
Priorities for the Metropolitan Police Department," which
ranked crime-related issues and proposed solutions. Soulsby
did not respond; O'Donnell claims that this was because
Soulsby wished to keep things quiet pending his confirmation
as Chief of Police by the D.C. City Council.
Soon afterwards, Soulsby told O'Donnell that Mayor Mar-
ion Barry was blocking O'Donnell's promotion to Assistant
Chief of Police (a promotion Soulsby had promised to secure).
Soulsby said that the Mayor believed that O'Donnell was a
racist; there was, O'Donnell avers, no reason that anyone
should believe that this was true. O'Donnell then spent
several months off the job because of a heart condition.
When he returned, in September 1995, he learned that he was
to be transferred to a less responsible position, that of
Commander of the Property Division. (O'Donnell did, howev-
er, retain his rank as Deputy Chief of Police.) Once again,
Soulsby said that the transfer was because Barry thought
O'Donnell was a racist.
Soulsby also reassigned Captain Hennessy to a less respon-
sible job, that of Night Supervisor. According to O'Donnell,
Soulsby then told the media in an off-the-record statement
that Hennessy had been transferred because he was under
investigation and likely to be indicted for violating the civil
rights of a black suspect. O'Donnell says that when Hennes-
sy learned of this claim he confronted Soulsby, who admitted
he had lied. Hennessy apparently taped this conversation,
and later told Soulsby that he had done so. As a result, the
two allegedly entered into a pact (which O'Donnell refers to
as the "Soulsby-Hennessy agreement") under which Hennes-
sy got a better job (but not in the Homicide Branch), in
exchange for silence, especially at Soulsby's pending confir-
mation hearing. Soulsby was confirmed as Chief of Police in
December of 1995.
In the meantime, according to O'Donnell, he was doing an
exemplary job of running the Property Division. In his new
position, he was in charge of the Department's facilities for
storing property and automobiles, and supervised personnel
at a police drug laboratory. O'Donnell wrote a number of
reports about problems at the Division, which Soulsby again
ignored; O'Donnell nevertheless implemented a number of
the suggestions that they contained.
On May 9, 1996, Soulsby made a speech at the District's
Ballou High School in which he claimed that the backlog of
123 unsolved cases involving African-American women had
only been discovered after O'Donnell and Hennessy had been
transferred out of their jobs. O'Donnell protested to Soulsby
orally and in writing, and ultimately said that he would retire.
Shortly thereafter, the news media learned about the
Soulsby-Hennessy agreement, and Hennessy's tape of his
conversation with Soulsby; subsequent news reports were
highly critical of the alleged agreement, and of Soulsby's
performance as Chief of Police. For example, on July 14,
1996, the CBS television program 60 Minutes ran a report
that said that the Police Department had performed poorly
under Soulsby and that (in O'Donnell's words) Soulsby had
"low credibility." The report also criticized the Mayor's poor
response to the scandal surrounding the Soulsby-Hennessy
agreement, and said that senior executives in the Homicide
Branch believed that the reassignment of Captain Hennessy
was unjustified and had damaged the Police Department.
There were many demands for Hennessy and Soulsby to
release the tape. Soulsby called on Hennessy to release the
tape, and Hennessy, somewhat inexplicably, declined to do so
until Soulsby released him from their agreement. Senior
D.C. officials (including a D.C. Council member and the
Corporation Counsel) eventually criticized Soulsby for enter-
ing into the claimed agreement with Hennessy, and Soulsby
publicly apologized.
On July 18, 1996, in the midst of these events, the Wash-
ington Post published a letter to the editor by O'Donnell,
which said:
I am writing to confirm the credibility of Capt. William
L. Hennessy of the Metropolitan Police Department. I
currently am employed by the Metropolitan Police De-
partment as a deputy chief of police assigned to the
technical services bureau as director of the property
division.
I was Capt. Hennessy's bureau chief during the better
part of the two years he spent as the commander of the
homicide branch. During this time, I observed Capt.
Hennessy to be a very loyal and extremely knowledge-
able and hard-working individual--one who clearly is
dedicated to the Metropolitan Police Department and the
citizens of the District of Columbia. Capt. Hennessy is a
"cop's cop"; he is a true leader.
I did not support Capt. Hennessy's transfer to a "non-
descriptive" assignment. It is my opinion that Capt.
Hennessy's transfer from the homicide branch not only
was a tragic loss to the Metropolitan Police Department
but a disservice to the citizens of the District.
Capt. Hennessy is an extremely credible person--
unlike the chief of police.
The following day, Soulsby and Barry demoted O'Donnell to
the rank of captain, and ordered him to a comparatively low
position as district patrol supervisor.
O'Donnell retired two weeks later, on July 31, 1996. As a
result of the fact that he was demoted before he retired, his
severance pay and payments for unused annual leave were
reduced by an amount that he estimates as $11,250. O'Don-
nell also says that he had intended to seek out a job as chief
of police of a large city, but that his demotion "irreparably
stigmatized" him in "the close-knit world of chiefs of police of
large cities and municipalities and eliminated him from any
real consideration for positions such as these." O'Donnell
ended up with a job as Chief of Police of Brunswick, Mary-
land.
On September 23, 1996, O'Donnell brought suit against the
District of Columbia, against Police Chief Soulsby and Mayor
Barry in their official capacities, and against Soulsby in his
individual capacity. O'Donnell's complaint claimed that the
foregoing events (1) violated his First Amendment rights; (2)
deprived him of a liberty interest in his good name and
professional reputation in violation of the due process clause;
and (3) deprived him of "his ability to pursue his chosen
occupational field," also in violation of the due process clause.
The defendants moved to dismiss or in the alternative for
summary judgment. The district court granted the motion to
dismiss as to the first two counts, and the motion for sum-
mary judgment as to the third. O'Donnell now appeals this
order.
The District also argued before the district court that
Soulsby was entitled to qualified immunity. The district
court did not reach this issue; the District presses it again on
this appeal.
II. Analysis
A.The First Amendment Claim
O'Donnell claims his transfer from the position of Deputy
Chief for the Investigative Services Bureau to the job at the
Property Division, and subsequent demotion to the rank of
captain and reassignment to a job as district patrol supervi-
sor, both occurred in retaliation for exercises of his right to
free speech. He cites five events that prompted the retalia-
tion against him: (1) his memo to Soulsby ranking crime
issues in the District; (2) his discussions with Soulsby about
the need to investigate the deaths of the 123 women; (3) his
criticism of Soulsby's claim in the Ballou High School speech
that the unsolved deaths were only discovered after O'Donnell
and Hennessy were transferred; (4) his memos on improve-
ments in the function of the Property Division; and (5) his
letter to the Washington Post.
The speech of public employees like O'Donnell enjoys con-
siderable First Amendment protection; the Supreme Court
has "unequivocally rejected" the proposition that public em-
ployees "may constitutionally be compelled to relinquish the
First Amendment rights they would otherwise enjoy as citi-
zens to comment on matters of public interest." Pickering v.
Board of Educ., 391 U.S. 563, 568 (1968). However, the reach
of this protection is not unlimited. A public official seeking to
make out a claim of retaliation in violation of her First
Amendment rights must meet a four-factor test. See Hall v.
Ford, 856 F.2d 255, 258 (D.C. Cir. 1988). "First, the public
employee must have been speaking on a matter of public
concern. If the speech is not of public concern, it is unneces-
sary to scrutinize the basis for the adverse action absent the
most unusual circumstances." Tao v. Freeh, 27 F.3d 635,
638-39 (D.C. Cir. 1994) (citations omitted). Second, the court
must consider whether the governmental interest in "promot-
ing the efficiency of the public services it performs through
its employees" without disruption, Pickering, 391 U.S. at 568,
outweighs the employee's interest, "as a citizen, in comment-
ing upon matters of public concern," id., and the interest of
potential audiences in hearing what the employee has to say,
United States v. National Treasury Employees Union, 513
U.S. 454, 468 (1995). Third, the employee must show that her
speech was a substantial or motivating factor in prompting
the retaliatory or punitive act of which she complains. See
Mt. Healthy City School Board of Education v. Doyle, 429
U.S. 274, 287 (1977). And finally, the employer should have
an opportunity to show "by a preponderance of the evidence
that it would have reached the same decision even in the
absence of the protected conduct." Id. "The first two fac-
tors under the Pickering test are questions of law for the
court to resolve, while the latter are questions of fact ordi-
narily for the jury." Tao, 27 F.3d at 639.
The District asserts that the first two elements of this test
are not satisfied here: it claims that O'Donnell's speech was
not on an issue of public concern, and asserts that, even if it
was, the city's interest in the efficient operation of the Police
Department far outweighed O'Donnell's interest in speaking
out. We address these two issues in that order.
1. Public Concern
The district court concluded that O'Donnell's memos to and
discussions with Soulsby were all on topics of public concern,
but that the letter to the editor was not. We agree with the
first finding, but disagree with the second; we find that all of
the communications at issue in this case were on topics of
public concern.
"Speech that concerns issues about which information is
needed or appropriate to enable members of society to make
informed decisions about the operation of their government
merits the highest degree of first amendment protection."
Hall v. Ford, 856 F.2d 255, 259 (D.C. Cir. 1988). All of the
speech at issue here falls into this category. Each of O'Don-
nell's memos to Soulsby involved important issues of Police
Department policy--questions of how to rank the Depart-
ment's law-enforcement priorities, and how to reform the
operations of the Property Division (which were, O'Donnell
claims, later shown by news reports to be in some need of
reform). His conversation with Soulsby about what priority
to give an investigation of over a hundred unsolved murders
was also obviously of great public concern; indeed, the con-
versation was itself prompted by a newspaper article critical
of Police Department ineptitude.
The district court concluded that O'Donnell's letter to the
editor was not on a subject of public concern because it
"related to long-standing internal disputes among O'Donnell,
Hennessy, and Soulsby, and not to matters of public concern
about the structure, management, or policies of the Depart-
ment," and did not contain any "information to educate or
inform the public about the operation of the MPD other than
to air Plaintiff's personal grievances." O'Donnell's conversa-
tion with Soulsby about the Ballou High School speech also
seems to have been motivated at least in part by personal
grievances.
In Connick v. Myers, 461 U.S. 138 (1983), the Court
considered the case of an employee of the New Orleans
District Attorney's office, who, dissatisfied with her impend-
ing transfer, circulated a questionnaire that asked a series of
general questions about levels of office morale and the confi-
dence employees had in their supervisors. The Court con-
cluded that (with one exception not relevant here) the "ques-
tions reflect[ed] one employee's dissatisfaction with a transfer
and an attempt to turn that displeasure into a cause clbre"
and hence did not raise issues of public concern. Id. at 148.
Connick emphasized, however, that "[w]hether an employ-
ee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement, as revealed by the whole record." Id. at 147-48.
Moreover, it is clear that the presence of a personal motiva-
tion for an employee's speech, although certainly a factor in
the public-concern analysis, need not destroy the character of
a communication as one of public concern. See Tao, 27 F.3d
at 639 ("The motivation of the employee is only one factor to
be considered in assessing whether a statement is one of
public concern."). Even a disgruntled employee can raise a
matter that is of considerable concern to the public. See, e.g.,
Connick, 461 U.S. at 148; Tao, 27 F.3d at 640; Stroman v.
Colleton County School Dist., 981 F.2d 152, 157-58 (4th Cir.
1992) (finding that although a letter circulated by a teacher to
fellow teachers was prompted by a "personal grievance," and
the letter's substance, "in large part, seems to be limited to
this grievance," the letter raised questions of budget misman-
agement, and hence was arguably on a subject of public
concern); Zamboni v. Stamler, 847 F.2d 73, 77-78 (3d Cir.
1988) (finding that a police detective's objections to a revised
promotion scheme were on a subject of public concern, even
though the employee was partly motivated by a desire to
improve his own chances for a promotion). Indeed, it may be
that those employees who are dissatisfied with their work-
places are precisely those who are likeliest to notice malfea-
sance, and be willing to speak up about it.
We find that there was a substantial public concern with
the subject matter of both the letter to the editor and the
conversation about the Ballou High School speech, and that
the fact that O'Donnell may have acted partly on the basis of
personal motivations makes no difference. O'Donnell's letter
to the editor raised two broad issues. First, by saying that
Hennessy's "transfer from the homicide branch not only was
a tragic loss to the Metropolitan Police Department but a
disservice to the citizens of the District," it indicated that the
Homicide Branch's work had been impaired by Hennessy's
loss. There had already been some public debate about the
effectiveness of the Homicide Branch (in the 60 Minutes
broadcast); O'Donnell's letter contributed to this debate, and
thus was on a subject of public concern.
Second, and more importantly, the letter contributed to the
public's knowledge of the Soulsby-Hennessy agreement, and
thus of Soulsby's fitness for office. The pact involved an
attempt by Soulsby to prevent information that might have
damaged his chances of confirmation from coming to light;
members of the public might legitimately see this agreement
as improper, or worse. Although, as we discuss below, there
remain questions about precisely what information the letter
contributed about the pact, it made at least an evaluative
contribution. It was therefore on a subject of public concern.
A communication that provides information that might help
the public to "make informed decisions about the operation of
their government merits the highest degree of first amend-
ment protection," Hall, 856 F.2d at 259; there are few more
fundamental decisions that the public can make about its
government than assessing the probity of a public official.
See Foster v. Ripley, 645 F.2d 1142, 1148 (D.C. Cir. 1981)
(observing that an employee's interest in speaking out is
"entitled to more weight when the employee is ... acting as a
whistleblower exposing corruption among public officials");
cf. Connick, 461 U.S. at 148 (noting that the plaintiff had not
claimed "that the District Attorney's Office was not discharg-
ing its governmental responsibilities," or sought "to bring to
light actual or potential wrongdoing or breach of public
trust").
Turning to O'Donnell's exchange with Soulsby after the
Ballou High School speech, O'Donnell says that he told
Soulsby that it was not true that the 123 unsolved murders
only came to light after O'Donnell and Hennessy were trans-
ferred, and reminded him that Soulsby himself had opposed
an investigation. This conversation implicated a number of
broader policy issues, including questions about whether
Soulsby had been right to transfer Hennessy and O'Donnell
to less responsible positions and about what caused the
backlog and how it was detected. Thus, this conversation,
too, was on a topic of public concern.
2. Governmental Interest
In the second step of the Pickering analysis, we consider
whether the government's interest in "promoting the efficien-
cy of the public services it performs through its employees,"
Pickering, 391 U.S. at 568, outweighs the employee's interest
in speaking out and the public's interest in hearing what he
has to say--or, in the case of speech made in private (like
some of the speech here), the public's interest in having the
employee make himself heard within his organization.
We have already outlined the nature of the interests on the
employee's side of the equation. As to those on the govern-
ment's side, the Court explained in Rankin v. McPherson,
483 U.S. 378, 388 (1987), that we must consider "whether the
statement impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working rela-
tionships for which personal loyalty and confidence are neces-
sary, or impedes the performance of the speaker's duties or
interferes with the regular operation of the enterprise." And,
just as we consider the content, manner, time and place of the
speech in deciding whether it is of public concern at all, we
take these factors into account in weighing the governmental
interest in regulating the speech. See Connick, 461 U.S. at
152-53.
Before we launch into the governmental-interest analysis,
we will dispose of two preliminary issues. First, the District
rightly argues, and the district court correctly agreed, that
because of the special degree of trust and discipline required
in a police force there may be a stronger governmental
interest in regulating the speech of police officers than in
regulating the speech of other governmental employees. The
Supreme Court has found that a police department may
legitimately regulate its officers' personal grooming in order
to make its officers readily recognizable and promote "esprit
de corps," Kelley v. Johnson, 425 U.S. 238, 248 (1976), and a
number of courts of appeals have extended this principle to
regulation of speech. See, e.g., Tyler v. City of Mountain
Home, 72 F.3d 568, 570 (8th Cir. 1995) (finding that a police
department permissibly demoted a sergeant for sending a
confrontational letter to another police department on official
letterhead without first clearing the letter with the chief of
police, as required by police department policy). We note,
however, that the right to regulate an officer's speech is not
absolute, see Biggs v. Village of Dupo, 892 F.2d 1298, 1303
(7th Cir. 1990) ("[F]reedom of speech is not traded for an
officer's badge"); in particular, when a police officer speaks
out on an issue that he is uniquely qualified to address, we
must be cautious in accepting the claim that the public
interest demands that he be silent. See id. (citing Pickering,
391 U.S. at 572).
The District also observes that it is especially disruptive for
the high-level employees of a governmental agency to express
public disagreement with the agency's policies. This is true;
as we said in Hall, "[h]igh-level officials must be permitted to
accomplish their organizational objectives through key depu-
ties who are loyal, cooperative, willing to carry out their
superior's policies, and perceived by the public as sharing
their superiors' aims." 856 F.2d at 263. An employee may
be dismissed who "expresses views on matters within the core
of his responsibilities that reflect[ ] a policy disagreement
with his superiors such that they could not expect him to
carry out their policy choices vigorously." Id. at 265. In
Hall, for example, the athletic director at the University of
the District of Columbia was dismissed after repeatedly and
publicly disagreeing with his superiors about the proper
response to violations of university and National College
Athletic Association rules.
In order to decide whether a public employee is within the
"narrow band" of "key deputies" who are subject to this
analysis, id. at 263, we consider whether the employee's job
relates to policy matters, and whether the employee has
"broad responsibilities with respect to policy formulation,
implementation, or enunciation." Id. at 264. It is quite clear
that O'Donnell's initial position as head of the Investigative
Services Bureau was in this category; in that position, he was
in charge of numerous key operational offices of the Police
Department, and one of seven members of the Police Depart-
ment's Executive Committee, its principal policymaking body.
But when O'Donnell was transferred to the Property Divi-
sion, he moved outside of the "narrow band" we discussed in
Hall. His job seems to have had some policy responsibilities;
he was in charge of a number of Police Department facilities,
and his complaint describes several reforms he instituted in
their operations, seemingly on his own initiative. But we
doubt that O'Donnell's policy responsibilities were broad
enough, or sufficiently central to the Department's mandate,
to make him one of the "key deputies" discussed in Hall.
O'Donnell's work, although important, primarily involved sup-
port functions. And, as he describes his status within the
Department, his policymaking role was decidedly marginal.
Soulsby could safely dispense with answering his memos, and
O'Donnell was relegated to the audience at meetings of high-
level Police Department officials. On these facts, O'Donnell
cannot be labeled a "key deputy." 1
With these principles in mind, we turn to an analysis of the
speech in this case.
a. Memoranda. O'Donnell claims that after he wrote
Soulsby a memo about crime-fighting policy in the District,
Soulsby transferred him to the Property Division to block
discussion of crime in the District until after Soulsby was
confirmed. He also avers that Soulsby ignored his memos
about policy changes at the Property Division in order to
discourage him from uncovering problems at the Department,
and that these memos later helped prompt his demotion.
From their descriptions in the record, O'Donnell's memos
consisted entirely of innocuous, practical suggestions about
Police Department policy. If O'Donnell's memos played any
role in his transfer to the Property Division (and we do not
know for sure what led to that transfer), it might have been
in revealing policy differences between O'Donnell and Soulsby
of a kind that, under Hall, could legitimately prompt a high-
level deputy's transfer out of the inner circle. The same is
true of the memos O'Donnell wrote while at the Property
Division; it is hard to see how routine policy memoranda
could have prompted any adverse response from Soulsby, but,
if they did, it would have been the result of disagreements
about policy.2
__________
1 The District notes that O'Donnell remained very senior in rank
even after his transfer to the Property Division, and that he was a
long-serving and experienced officer whose words would be taken
seriously within the Department. It claims that this renders him a
"key deputy" under Hall. But Hall turns on a functional analysis
of the employee's responsibilities and whether they demand the
employee's unwavering fealty, not on an employee's length of
service or nominal rank.
2 O'Donnell's brief suggests that these memos were about issues
that did later make a big media splash, like "lost evidence" and an
"unguarded property warehouse." But his complaint mentions
b. Conversations. O'Donnell also avers that Soulsby
transferred him to the Property Division in retaliation for the
conversation in which O'Donnell argued that the 123 deaths
should be investigated further, and that his demotion was
partially prompted by the later conversation in which O'Don-
nell reprimanded Soulsby for misleading the public about the
investigation of those same deaths.
We begin with the first of these conversations. The Dis-
trict argues that, under Hall, Soulsby was entitled to transfer
O'Donnell on the basis of the policy differences this (asserted)
conversation revealed. Hall gives employers considerable
leeway to ensure that high-level officials toe the party line,
but it does not give them unchecked power to silence them.
In some cases, the public interest in a high-level official's
speech will outweigh any interest in that official's bureaucrat-
ic loyalty. Hall permits adverse action on the basis of speech
that implicates "the government interest in accomplishing its
organizational objectives through compatible policy level dep-
uties," 856 F.2d at 264; but sometimes what an employee has
to say will signal not policy differences but potential serious
violations of the public trust. For instance, had the athletic
director in Hall been punished merely for suggesting to the
university's board of directors that one of his subordinates
had committed a grave act of embezzlement, the result in that
case might have been different.
At first glance, O'Donnell's account of his conversation with
Soulsby seems troubling. Supposedly, O'Donnell was pun-
ished for disagreeing with Soulsby's order that nothing
should be done to investigate allegations that 123 murders of
African-American women had gone unsolved, even though a
serial killer might be at large--suggesting that O'Donnell was
challenging a severe breach of the public trust. A closer
examination, though, reveals the matter is more complicated.
O'Donnell gives only the vaguest account of Soulsby's reasons
for opposing an investigation. His complaint does not attrib-
ute any dishonorable motive to Soulsby (such as a desire to
__________
nothing of the kind, and indeed suggests that O'Donnell eventually
solved all of the problems he described in his memos.
cover up the Department's errors), and on this appeal O'Don-
nell cites no reason to believe that Soulsby had any such
motivation. Moreover, O'Donnell says that Soulsby called the
article about the backlog "untrue"; although it is unclear
what this means, one reading would be that Soulsby believed
that there was no unusual backlog because the number of
unsolved murders of African-American women was no larger
(taking populations into account) than the backlog of unsolved
murders generally. If so, the conversation turned on a
legitimate disagreement about statistics, rather than on a
potential dereliction of duty.
The vagueness of O'Donnell's complaint, however, renders
this reading, and any other, speculative. If it is O'Donnell's
claim that Soulsby retaliated against him for seeking to
dissuade Soulsby from committing a grave breach of the
public trust (or for some other impermissible reason) he
should make that claim more explicitly. In the absence of
any such allegation, we must assume that any adverse action
taken against him as a result of his conversation with Soulsby
occurred because of a legitimate disagreement about policy,
and so was permitted by Hall. We thus affirm the district
court's dismissal of this element of O'Donnell's claim.3
As to O'Donnell's later conversation with Soulsby about the
Ballou High School press conference, this incident merits
little discussion. There is little evidence of any causal link
between this conversation and O'Donnell's later demotion,
which was tied much more closely to O'Donnell's letter to the
editor. And, although the conversation raised some issues
about Soulsby's veracity, it did not touch on the more serious
issues surrounding the Soulsby-Hennessy pact. Finally,
__________
3 We note, however, that "a dismissal under Rule 12(b)(6) gener-
ally is not final or on the merits and the court normally will give
plaintiff leave to file an amended complaint." Charles A. Wright &
Arthur R. Miller, 5A Federal Practice and Procedure s 1357 at
360-61 (1990). This opinion does not foreclose O'Donnell from
seeking to file an amended complaint, especially given that neither
the district court nor the parties previously focused on the com-
plaint's inadequacies.
O'Donnell's personal motivations for this conversation were
especially strong, as he was responding to a speech in which
Soulsby had blamed him for the failure to detect the backlog
of unsolved murders.
c. The Letter to the Editor. We now turn to O'Donnell's
letter to the editor. The letter appears to be in that small
category of speech by public employees that has a high
potential both to cause disruption and to inform the public.
Because both elements of the governmental-interest analysis
are thus at their height, we must perform our analysis with
especial caution, to avoid shortchanging the interests on
either side of the equation.
We begin with the governmental interests. As the District
points out, O'Donnell's letter presented a substantial risk of
harming his relationship with Soulsby and injuring Police
Department morale and discipline. And, although (as we
have found) O'Donnell was not in Soulsby's inner circle when
he wrote the letter, he was a fairly senior police official, so
that it was of some importance that he appear loyal to his
superiors. But the circumstances of this case also weaken
the governmental interests to some extent. Although it no
doubt would have been difficult for Soulsby and O'Donnell to
work together after O'Donnell's letter was written, on the
record as it stands their working relationship seems to have
been very limited in any case: O'Donnell occasionally wrote
Soulsby memoranda (and received no response), and the two
occasionally saw each other at meetings, but there appears to
have been little other working relationship. See Rode v.
Dellarciprete, 845 F.2d 1195, 1202 (3d Cir. 1988) (noting that
the plaintiff and the supervisor she criticized did not work
closely together). And, as to the discipline and morale of the
Police Department, the frequent media criticism of the De-
partment's (and Soulsby's) performance in the weeks preced-
ing O'Donnell's letter had doubtless already taken its toll.
Although this did not leave O'Donnell entirely free to kick the
Department while it was down, the fact that his criticism was
cumulative does diminish the harm it caused. Moreover,
O'Donnell's letter followed a 60 Minutes broadcast which,
according to O'Donnell, "documented that senior detectives in
the Homicide Branch were firmly convinced that defendant
Soulsby's reassignment of Capt. Hennessy was unjustified
and had damaged the MPD," and in which Hennessy ac-
knowledged the existence of a tape of his confrontation with
Soulsby. There is no indication on the present record that
either the "senior detectives" or Hennessy were ever pun-
ished for these statements, which were presumably also quite
injurious to Department discipline and morale; this weakens
the District's claim that O'Donnell's letter could not safely be
left unpunished.
To turn to the public-concern side of the equation, O'Don-
nell's letter makes two principal points: it observes that
Hennessy's transfer out of the Homicide Branch hurt the
Branch, and it endorses the credibility of Hennessy and
questions that of Soulsby. The second comment overshadows
the first both in its potential value to the public and in its
potential disruptiveness; we will therefore focus our analysis
of that aspect of the letter.
As we have said, information about the pact was clearly of
great concern to the public; concrete additional information
about the circumstances of the pact might well have overcome
any governmental interest in silencing O'Donnell. But it is
unclear on the present record what O'Donnell's letter really
contributed to the public's knowledge about the Soulsby-
Hennessy pact. The value of a communication to the public
hinges on the extent to which a reasonable member of the
public would give it weight in deciding issues of public
importance. For instance, the public would reasonably give
little or no weight to expressions of personal animus or
spleen, but great weight to highly probative evidence bearing
on problems of public importance.
The Federal Rules of Evidence provide a useful guidepost
for assessing the probative value of O'Donnell's comments.
(We emphasize that we use these rules only as a framework
for our analysis; by no means do we purport to import the
rules of evidence wholesale into the First Amendment.)
O'Donnell's letter is cast in terms of "credibility," but it is
unclear how the public would have interpreted this term (or
indeed what he meant by it). If he meant merely to comment
generally on the character of Hennessy and Soulsby, then the
letter is of little value to the public. As the Advisory
Committee Note to Federal Rule 404 observes, "[c]haracter
evidence is of slight probative value and may be very prejudi-
cial," as it "tends to distract the trier of fact from the main
question of what actually happened on the particular occa-
sion." But if the letter is read as a commentary on the
believability of recent statements by Hennessy and Soulsby,
it might have more significance. As Rule of Evidence 608
indicates, evidence as to the credibility of a witness can at
times have substantial probative value.
We do not know which reading a reasonable member of the
public would have adopted, or to what extent the credibility of
statement by Hennessy and Soulsby was important in the
public's mind when O'Donnell wrote his letter. It is unclear
on the present record to what extent Soulsby contested
Hennessy's account of the pact. O'Donnell says that Soulsby
at some point publicly apologized for entering into his pact
with Hennessy, but we do not know whether this apology
occurred before or after O'Donnell wrote his letter. It may
also be that the state of the debate was such that an informed
reader would infer from O'Donnell's letter that his comments
on Hennessy's and Soulsby's veracity were based not only on
a general knowledge of their character, but also on personal
knowledge of some of the events surrounding the Soulsby-
Hennessy agreement. The allegations surrounding the pact
are exceptionally intricate (one expects a Maltese falcon to
enter into the story at any moment). In the eyes of an
informed reader, some of the statements in O'Donnell's letter,
such as his discussion of Hennessy's illustrious service at the
Homicide Branch, might have taken on a significance that is
invisible to us now.
The district court dismissed O'Donnell's First Amendment
claims before any record had been developed, and indeed
before the District filed an answer. We conclude that it is
not possible to decide what value O'Donnell's letter would
have had to the public without a more complete record as to
the state of the public debate at the time the letter was
written. If the public's view of the Soulsby-Hennessy pact
would reasonably have been influenced by evidence as to
Hennessy's (and Soulsby's) credibility, and if O'Donnell's
words on that subject would have carried weight, then O'Don-
nell's comments might have made a sufficient contribution to
the public debate to outweigh the governmental interest in his
silence. There are also some uncertainties in our analysis of
the nature of the governmental interest; it is unclear, for
instance, whether we are correct to assume that a number of
other Police Department officials had criticized Soulsby in
public with impunity. The district court should permit the
parties to develop these issues further on remand.
B.Due Process Clause
O'Donnell's complaint attempts to plead two distinct due
process claims. His first is based upon the stigma and loss of
"rank, status and pay" associated with the District's reassign-
ing him to the Property Division, blaming him for the failings
of the Department, and then demoting him. His second is
based upon the harm to O'Donnell's employment opportuni-
ties associated with these acts.
These claims are not really distinct under applicable due
process law, and they are in any event too broad. A loss of
rank, status and pay alone is not actionable under the Due
Process Clause. The Supreme Court found in Board of
Regents v. Roth, 408 U.S. 564, 573-78 (1972), that an at-will
employee has no liberty or property interest in continued
employment, and it is clear that D.C. law creates no such
interest. See D.C. Code s 4-104 (permitting the Mayor to
return Deputy Chiefs to the ranks of captain "when the
Mayor so determines"). Nor may O'Donnell sue purely on
the basis of the stigma associated with being fired; the Court
found in Paul v. Davis, 424 U.S. 693 (1976), that stigma alone
is not actionable, without a showing that a "right or status
previously recognized by state law" has been "distinctly al-
tered or extinguished." Id. at 711.
The Roth Court did cite two circumstances in which a
governmental employment decision might be actionable.
First, it observed that, although the plaintiff could not sue for
the nonrenewal of his contract alone, "[t]he State . . . did not
make any charge against [the employee] that might seriously
damage his standing and associations in the community," and
that "[i]t did not base the nonrenewal of his contract on a
charge, for example, that he had been guilty of dishonesty, or
immorality." Roth, 408 U.S. at 573. Second, the Court noted
that "there is no suggestion that the State, in declining to re-
employ the respondent, imposed on him a stigma or other
disability that foreclosed his freedom to take advantage of
other employment opportunities," and that it did not, for
instance, "invoke any regulations to bar the respondent from
all other public employment in state universities." Id.
O'Donnell argues that his claim fits within each of these two
exceptions.4
1. Reputation-Plus
The first category of claim, in which the plaintiff points to
the conjunction of official defamation and adverse employ-
ment action, is usually termed a "reputation-plus" claim.
Paul explained this passage of Roth as meaning that defama-
tion alone is not actionable under the due process clause, but
that defamation "in the course of the termination of employ-
ment" is. 424 U.S. at 710. This circuit has since said that a
demotion may also suffice to trigger a due process claim.
"For a defamation to give rise to a right to procedural due
process, it is necessary--we need not say when it is suffi-
cient--that the defamation be accompanied by a discharge
from government employment or at least a demotion in rank
and pay." Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir.
1983) (emphasis added). Although the conceptual basis for
reputation-plus claims is not fully clear, it presumably rests
on the fact that official criticism will carry much more weight
if the person criticized is at the same time demoted or fired.
Requiring a demotion or firing to trigger a defamation claim
__________
4 We reject the District's claim that O'Donnell's due process
claims should be denied because he did not expressly seek a name-
clearing hearing. There is no need for a plaintiff to make such a
request explicitly, so long as it is reasonably clear that what the
plaintiff complains of includes the lack of a hearing. Doe v. United
States Department of Justice, 753 F.2d 1092, 1103 (D.C. Cir. 1985).
also helps to limit the scope of permissible due process claims
to a small set of truly serious claims, thus limiting the
constitutionalization of tort law.
Although O'Donnell can point to isolated defamatory state-
ments and to a demotion, he cannot demonstrate that the two
occurred together; only defamation that is "accompanied by
a discharge from government employment or at least a
demotion in rank and pay" is actionable. Mosrie, 718 F.2d at
1161 (emphasis added). First, O'Donnell's transfer to the
Property Division did not involve any loss of rank. A lateral
transfer, even to a job that is regarded as a "dumping
ground," cannot form the basis of a reputation-plus claim.
Miller, 718 F.2d at 1156, 1161-62. O'Donnell also cites
Soulsby's criticism of him in the Ballou High School speech;
but O'Donnell's demotion was clearly triggered by his letter
to the editor, and had no obvious link, temporal or logical, to
the speech. Finally, on the record as it stands, there is no
sign that the District made any defamatory statements about
O'Donnell at the time of his demotion. See Orange v. District
of Columbia, 59 F.3d 1267, 1274 (D.C. Cir. 1995) (concluding
that a firing without any associated public statements is not
actionable).
2. Stigma or Disability
The second Roth exception turns on the combination of an
adverse employment action and "a stigma or other disability
that foreclosed [the plaintiff's] freedom to take advantage of
other employment opportunities," Roth, 408 U.S. at 573; it
differs from the first in that it does not depend on official
speech, but on a continuing stigma or disability arising from
official action. We applied this exception in Kartseva v.
Department of State, 37 F.3d 1524 (D.C. Cir. 1994). In that
case, the plaintiff was a Russian translator who had been
denied a security clearance by the State Department, and
therefore fired by the consulting company that employed her.
We distinguished two ways in which this denial could effect a
"stigma or other disability" within the meaning of Roth.
First, it might have "formally or automatically exclude[d]
Kartseva from work on some category of future State con-
tracts or from other government employment opportunities."
Id. at 1528. Second, it might, without this "binding effect,"
still have "the broad effect of largely precluding Kartseva
from pursuing her chosen career as a Russian translator."
Id. (emphasis omitted). O'Donnell claims that the various
measures that the District took against him effectively pre-
cluded him from pursuing his profession, and so bring him
within the second prong of Kartseva.
The Constitution protects an individual's "right to follow a
chosen trade or profession" without governmental interfer-
ence. Kartseva, 37 F.3d at 1529 (quoting Cafeteria Workers
v. McElroy, 367 U.S. 886, 895-96 (1961)). Government action
that has the effect of "seriously affect[ing], if not de-
stroy[ing]" a plaintiff's ability to pursue his chosen profession,
Kartseva, 37 F.3d at 1529 (quoting Greene v. McElroy, 360
U.S. 474, 492 (1959)), or "substantially reduc[ing] the value of
his human capital," Taylor v. Resolution Trust Corp., 56 F.3d
1497, 1506 (D.C. Cir. 1995), thus infringes a liberty interest.
There are, however, some limitations on this principle. As
the Court made clear in Siegert v. Gilley, 500 U.S. 226 (1991),
a showing of reputational harm alone cannot suffice to demon-
strate that a liberty interest has been infringed. Thus, a
plaintiff who (like O'Donnell) seeks to make out a claim of
interference with the right to follow a chosen trade or profes-
sion that is based exclusively on reputational harm must show
that the harm occurred in conjunction with, or flowed from,
some tangible change in status. One such change in status,
of course, is an adverse employment action.
O'Donnell claims that after his demotion he was unable to
find employment in his chosen field, as a chief of police in a
major city or municipality. After his complaint was filed, he
became police chief in Brunswick, Maryland, whose popula-
tion is 6,000. (Because this fact did not appear in O'Donnell's
complaint, the district court could not consider it in ruling on
the District's motion to dismiss; it therefore granted sum-
mary judgment as to Count III of O'Donnell's complaint.)
O'Donnell may well have suffered some stigma in the job
market as a result of his demotion. We conclude, however,
that the evidence in this case falls short of that required to
make out a claim under Roth and Kartseva. To begin with,
the stigma associated with O'Donnell's demotion was less
severe than that attached to Kartseva's disqualification.
Kartseva was disqualified, for unknown but potentially seri-
ous reasons, from an uncertain and perhaps broad range of
government employment; we found this to be potentially
sufficiently stigmatic to render her unemployable in much of
her field. By contrast, the reason for O'Donnell's demotion
was fairly clear, and the stigma itself less severe. Although it
is difficult to put a good face on the denial of a security
clearance, it may be that some employers would welcome a
police official who (as they might see it) places the public's
interest above bureaucratic pressures.
Furthermore, O'Donnell's new job demonstrates that the
stigma he suffered cannot have been too disabling. Although
he has moved from a large city to a town (Washington's
population is over 500,000, as against Brunswick's population
of 6,000), he has moved up in the ranks; he is now chief of
police. O'Donnell's overall responsibilities have certainly
dwindled (for instance, he supervises far fewer officers), and a
still greater diminution in his employment opportunities
might well have sufficed to show that the value of his "human
capital," Taylor, 56 F.3d at 1506, has dropped enough to
infringe his liberty interest in his chosen profession. But
O'Donnell has presented no concrete evidence (and the cir-
cumstances do not demonstrate) that he would have done
dramatically better on the job market in the absence of his
demotion. Certainly, we cannot be sure that he could have
obtained, as was his stated wish, a job as chief of police in a
"major city or municipality." Even if the demotion did set
him back a step on his career path (which may or may not be
true), that would fall markedly short of showing that his
ability to pursue his chosen profession has been "seriously
affected, if not destroyed." Kartseva, 37 F.3d at 1529 (quot-
ing Greene, 360 U.S. at 492). Summary judgment as to this
claim was therefore appropriate.
C.Qualified Immunity
The District argued below, and argues again here, that
Soulsby, the only individual defendant (Barry was sued only
in his official capacity), is entitled to qualified immunity. The
district court did not reach this question; we do, and we
agree with the District. An official is entitled to qualified
immunity unless she has violated a clearly established right.
"The contours of the right must be sufficiently clear that a
reasonable officer would understand that what he is doing
violates that right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has been held unlawful ... but it is to say that in the
light of preexisting law the unlawfulness must be apparent."
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). As our
analysis of the status of O'Donnell's letter demonstrates, it is
by no means clear whether that letter is legally protected, so
that any unlawfulness in Soulsby's acts in (allegedly) securing
O'Donnell's demotion was not "apparent." Soulsby is thus
entitled to qualified immunity.
III. Conclusion
In summary, we affirm the district court's dismissal of
O'Donnell's First Amendment claims, except for its dismissal
of his claim based on the letter to the editor. As to this
claim, we remand to permit the district court to determine, on
the basis of a more complete record, what the significance of
O'Donnell's references to the "credibility" of Hennessy and
Soulsby would have been to an informed member of the
public at the time O'Donnell wrote his letter, and in turn to
decide to what degree the letter touched on a topic of public
concern and hence weighed against the government's interest
in O'Donnell's silence. We affirm the district court's disposi-
tion (by dismissal and summary judgment) of O'Donnell's due
process claims. Finally, we find that Soulsby is entitled to
qualified immunity in the proceedings on remand.
So ordered.