Thompson v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2005 Decided October 28, 2005
Reissued December 22, 2005

No. 04-7106

JAMES A. THOMPSON, JR.,
APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 97cv01015)

Ellen K. Renaud argued the cause for appellant. On the
briefs was Richard L. Swick.

William J. Earl, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellee. With him on the brief were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.

Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.
 2

Concurring opinion filed by Circuit Judge EDWARDS.

TATEL, Circuit Judge: The District of Columbia Lottery
Control Board fired appellant, a career auditor, after more than
ten years of service. Troubled by the Board’s treatment of him,
appellant sued, alleging (1) that the Board fired him because he
engaged in First Amendment-protected activity, (2) that the
Board failed to afford him a hearing as required by the Fifth
Amendment’s Due Process Clause, and (3) that Board
supervisors acted in a manner sufficiently outrageous to
constitute intentional infliction of emotional distress. Finding
that the district court improperly dismissed appellant’s First and
Fifth Amendment claims on the pleadings, we reverse and
remand for further proceedings on those claims. And given that
appellant conceded at oral argument that the district court lacked
subject matter jurisdiction to resolve his intentional infliction of
emotional distress claims against the Board and the District of
Columbia, we vacate the judgment on those claims and remand
with instructions to dismiss for lack of jurisdiction.

I.
As we must in reviewing a judgment on the pleadings, we
view the complaint’s allegations in the light most favorable to
the plaintiff. Peters v. Nat’l R.R. Passenger Corp., 966 F.2d
1483, 1485 (D.C. Cir. 1992).

Appellant James A. Thompson Jr. began working for the
District of Columbia Lottery Control Board (“the Board”) as an
auditor in 1985. Moving up through the ranks over the next few
years, he became Chief of Security in 1988. In January 1994,
after a series of events not at issue in this appeal, the Board
reassigned him to the Audit Division.

In the course of his work as an auditor, Thompson made
several allegations of fraud and misconduct against the Board’s
 3

on-line contractor, Lottery Technology Enterprise (LTE), and
LTE’s subcontractor G-TECH. His supervisors repeatedly
disparaged his reports and discouraged him from continuing his
investigations. Undeterred, Thompson pressed on. Of particular
note for this appeal, in a February 1996 memorandum to then-
Acting Executive Director Dorothy Wade, Thompson alleged
that LTE and G-TECH had retained some surplus computer
equipment without paying for it. Several months later, in July,
Wade gave Thompson an adverse performance evaluation,
which Thompson viewed as retaliation for his allegations.

Also in July, Board Director Frederick King transferred
Thompson to King’s “new security program.” The very next
day, King informed Thompson that a reduction in force (RIF)
would eliminate Thompson’s new position effective September
28. That same day, King and the Board’s General Counsel told
Thompson they were placing him on administrative leave until
September 18 because, they said, he “needed time to think.”

Thompson returned to work on September 18, and on
September 28, the day the RIF was scheduled to become
effective, the personnel office told him to return to work as if the
RIF had no effect on him. Two days later, the Board gave
Thompson a temporary assignment, and he continued working
until December 18, at which point he left on sick leave followed
by “Use or Lose Annual Leave.” The leave period lasted
through January 7, 1997, at which point Thompson informed
King that for medical reasons he could not return to work. On
February 26, Thompson received a personnel action form
advising him that his temporary appointment had expired on
January 29.

Thus out of work, Thompson filed suit in the U.S. District
Court for the District of Columbia, bringing numerous claims
against the Board and his individual supervisors. Thompson
 4

later agreed to dismiss several claims in exchange for
defendants’ agreement not to seek summary judgment, leaving
three claims before the district court: retaliation against
Thompson on the basis of protected speech, failure to provide
him with due process before terminating him, and intentional
infliction of emotional distress. Defendants moved for judgment
on the pleadings, and the district court granted the motion on all
three counts. Thompson v. District of Columbia, No. 97-1015
(D.D.C. June 23, 2004); Fed. R. Civ. P. 12(c).

Thompson now appeals. Our review is de novo. Peters,
966 F.2d at 1485.

II.
By becoming a public employee, Thompson did not
relinquish his First Amendment right to “comment on matters of
public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968). Nor did he sacrifice his right to bring a First
Amendment claim by deciding “to communicate privately with
his employer rather than to spread his views before the public.”
Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16
(1979).

In evaluating Thompson’s First Amendment claim, we
engage in a four-element inquiry. O’Donnell v. Barry, 148 F.3d
1126, 1133 (D.C. Cir. 1998). We ask: (1) whether Thompson
spoke on “a matter of public concern”; (2) whether the
governmental interest in “promoting the efficiency of the public
services it performs through its employees” outweighs
Thompson’s “interest, as a citizen, in commenting upon matters
of public concern, and the interest of potential audiences in
hearing what [he] has to say”; (3) whether Thompson has
demonstrated that his “speech was a substantial or motivating
factor in prompting the retaliatory or punitive act”; and (4)
whether the Board has demonstrated that, even without the
 5

protected speech, “it would have reached the same decision.”
Id. (internal citations and quotation marks omitted). The first
two inquiries are questions of law, while the last two are
questions of fact usually left to the jury. Id.

The Board concedes that Thompson spoke on a matter of
public concern (element one). Moreover, the Board neither
disputes that Thompson’s complaint alleges sufficient facts for
a jury to conclude that his “speech was a substantial or
motivating factor” in adverse actions taken against him (element
three) nor argues that “it would have reached the same decision”
even without the protected speech (element four). Finally, the
Board nowhere claims that purely job-related speech loses all
First Amendment protection. See Garcetti v. Ceballos, No. 04-
473, ___ S. Ct. ___ (Feb. 28, 2005) (granting cert. on this
question), granting cert. to 361 F.3d 1168 (9th Cir. 2004). To
be sure, it asserts that Thompson’s allegedly protected speech
occurred during the performance of his job duties, but it does so
only in the context of emphasizing the strength of the
employer’s interest. Appellees’ Br. 24. This case therefore
hinges on element two, requiring that we balance the
government’s interests against those of Thompson and his
“potential audiences.”

The district court concluded as a matter of law that the
government’s “interest in maintaining an efficient workplace in
which subordinate employees do not threaten relationships with
important contractors and do not routinely disobey their
superiors” outweighed Thompson’s First Amendment rights.
Thompson, No. 97-1015, slip op. at 7 (D.D.C. June 23, 2004).
The district court erred in drawing that conclusion from this
limited record. As we have held, the balancing test calls for a
fact-intensive inquiry: “When confronted with firings that
implicate a public employee’s First Amendment rights, the
courts are required to conduct an individualized and searching
 6

review of the factors asserted by the employer to justify the
discharge.” Tygrett v. Barry, 627 F.2d 1279, 1282-83 (D.C. Cir.
1980). The district court could not conduct this “searching
review” based on this record, nor can we. Consisting only of the
complaint, the record contains no evidence regarding the extent
of Thompson’s alleged disruptiveness.

To be sure, in its appellate brief the Board suggests that
Thompson’s inquiries were “unduly disruptive of the agency’s
overall mission and its relationship with essential contractors.”
Appellees’ Br. 24. But the Board, whose agreement to forbear
seeking summary judgment limits our review to the complaint,
points to nothing in that pleading to support its claim. Indeed,
the Board’s insistence that a RIF—rather than anything
Thompson did—motivated his dismissal undermines its
contention that the need to end Thompson’s disruptive behavior
outweighs the First Amendment interests at stake here. See
Tygrett, 627 F.2d at 1286 (requiring court to focus review on
reasons given by employer at time of discharge). If Thompson
behaved so badly, why didn’t the Board terminate him for
cause?

Also, Thompson’s allegation that LTE and G-TECH
engaged in improper practices, which we must accept as true at
this stage of the proceedings, indicates that he had good reason
to “threaten relationships” with them. Indeed, the unquestioning
obedience that the Board appears to demand seems a poor
attribute for an employee in Thompson’s position; to the
contrary, we would have thought that to be diligent, auditors
must ask difficult questions and conduct penetrating
investigations. Cf. Hall v. Ford, 856 F.2d 255, 264-65 (D.C.
Cir. 1988) (affirming dismissal for failure to state a claim where
plaintiff was high-level policy employee whose job required
“loyalty at the expense of unfettered speech” (internal quotation
marks omitted)).
 7

In short, not only does Thompson’s complaint allege a First
Amendment violation, but nothing in it corroborates the Board’s
version of the story. The Board cannot prevail in a balancing
test with no record evidence on its side of the scale.

Nothing in Koch v. City of Hutchinson, 847 F.2d 1436 (10th
Cir. 1988) (en banc), upon which the Board relies, convinces us
to the contrary. There, the Tenth Circuit determined that the
City, which had terminated a Fire Marshal for submitting a
faulty report, had not violated the First Amendment. Id. at
1437-39. Koch differs from this case in two significant respects.
First, the Tenth Circuit reviewed a judgment n.o.v., so it
performed its balancing test with the benefit of a complete
factual record. Id. at 1439. Second, much of the deterioration
in the Fire Marshal’s relationship with his co-workers resulted
from their losing confidence in him—a loss of confidence which
the court found fully supported in the record. Id. at 1450-51.
Here, by contrast, the Board has offered no evidence that
Thompson performed poorly.

Accordingly, we will reverse the judgment on Thompson’s
First Amendment claim and remand for the district court to
develop a record sufficient to allow the “individualized and
searching review” required by our case law.

III.
We turn next to Thompson’s Fifth Amendment claim. The
Board concedes, as it must, that as a career employee Thompson
had a significant interest in continued employment, and that
“due process normally requires pre-termination proceedings of
some kind prior to the discharge.” Wash. Teachers’ Union
Local #6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997)
(citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985)). The Board does not argue that it afforded Thompson
a pre-termination hearing. Instead, it claims that this case
 8

presents one of the “extraordinary situations where some valid
governmental interest is at stake that justifies postponing the
hearing until after the event.” Id. (quoting United States v.
James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (internal
citations and quotation marks omitted in Wash. Teachers’
Union)).

For its “valid governmental interest,” the Board cites the
financial distress in which the District of Columbia found itself
around the time the Board fired Thompson—financial distress
that led to legislation giving District government agency heads
absolute discretion “to identify positions for abolishment.” D.C.
Code § 1-625.5(a) (1996 Supp.). The Board argues that because
it terminated Thompson in a RIF for financial reasons, nothing
it could have learned from a hearing would have changed its
mind.

The Board cites Washington Teachers’ Union for the
proposition that “the concept of procedural due process did not
require pre-deprivation hearings before execution of the 1996
modified RIFs.” Appellees’ Br. 29. Thompson, however,
unlike plaintiffs in Washington Teachers’ Union, contests the
assertion that a RIF caused his discharge. As we have
explained, moreover, “[w]ere we to look no further than the
stated reason for an employee’s separation, not only could an
agency cavalierly discharge [employees] under the guise of a
‘reduction-in-force’ but under that type of action it could also
deprive them of all adverse action procedural rights.” Fitzgerald
v. Hampton, 467 F.2d 755, 758-59 (D.C. Cir. 1972). If the
complaint in this case permits an inference that the RIF did not
cause Thompson’s discharge, granting judgment on the
pleadings would constitute precisely what Fitzgerald forbids:
“look[ing] no further than the stated reason.”
 9

In this case, the complaint’s allegations provide ample
justification for questioning the Board’s stated reason.
According to the complaint, King transferred Thompson to a
new position one day and announced the RIF eliminating that
position the next. The sparse record before us reveals no
justification for moving Thompson into the doomed position,
even if the District’s financial distress justified abolishing it.
See Levitt v. D.C. Office of Employee Appeals, 869 A.2d 364,
366 (D.C. 2005) (refusing to accept District’s characterization
as RIF where employee was transferred to newly created
position which was abolished a few weeks later). Moreover,
nothing in the record indicates that the Board abolished the
permanent position Thompson had held before the transfer to his
short-lived new post.

Reductions in force are about terminating positions, not
people. If, on remand, the district court determines that the
Board sought to terminate Thompson rather than Thompson’s
position—either as retaliation for First Amendment-protected
activity or for some other reason—then the Board’s argument
that RIFs require no pre-termination hearings becomes
irrelevant. And once again, the Board finds itself in an awkward
litigating position: Its claim that Thompson caused problems
sufficient to outweigh his First Amendment rights undermines
its contention that the Board targeted Thompson’s position
rather than Thompson himself.

As we cannot determine on the basis of the complaint alone
whether the Board had a governmental interest that justified
depriving Thompson of a pre-termination hearing, we will
reverse the judgment on the Fifth Amendment claim and remand
for further proceedings consistent with this opinion.
 10

IV.
This brings us finally to Thompson’s intentional infliction
of emotional distress claim. The Board argues, as it did in the
district court, that the Comprehensive Merit Personnel Act
(CMPA), D.C. Code tit. 1, ch. 6, preempts this claim. At oral
argument, Thompson conceded that the CMPA strips the court
of jurisdiction over his claims against both the Board and the
District of Columbia. See Robinson v. District of Columbia, 748
A.2d 409, 411 n.4 (D.C. 2000) (holding that CMPA preemption
is jurisdictional). We will therefore vacate the judgment on
those claims and remand with instructions to dismiss for lack of
subject matter jurisdiction. See Utility Air Regulatory Group v.
EPA, 320 F.3d 272, 277 (D.C. Cir. 2003) (requiring resolution
of jurisdictional issues before turning to the merits).

As to the two individuals Thompson also sued, Thompson’s
appellate brief describes them as “not party to
appeal,” Appellant’s Br. at i, and Thompson never served them,
see id. at 33. Thus, neither the merits of those claims nor the
question whether the district court had subject matter
jurisdiction over them is before us.

V.
Because the complaint’s allegations suffice to state both
First and Fifth Amendment claims, we reverse the judgments on
those claims and remand for further proceedings consistent with
this opinion. And because the district court lacked subject
matter jurisdiction over the common-law claims against the
District and the Board, we vacate the judgment on those claims
and remand with instructions to dismiss for lack of subject
matter jurisdiction.

So ordered.
 Edwards, Circuit Judge, concurring: I agree with the
majority that this case must be remanded to the District Court
for proper consideration of Mr. Thompson’s First Amendment
claim. I also agree that we lack subject matter jurisdiction over
Thompson’s intentional infliction of emotional distress claims
against the District of Columbia Lottery Control Board and the
District of Columbia. I write separately, however, to express
some concerns over Thompson’s Fifth Amendment claim, which
rests on his allegation that he was denied procedural due process
when the Board eliminated his position through a reduction in
force (“RIF”) without first affording him proper notice and
hearing. Thompson’s due process claim raises some challenging
issues that do not admit of simple resolution. I think these
issues require amplification so that the parties do not go astray
in their arguments when the case is heard again by the District
Court.
****
The first point that should be emphasized is that the District
Court may not need to reach Thompson’s due process claim.
The core of Thompson’s complaint is his allegation that the
Board retaliated against him for engaging in protected speech.
In other words, Thompson charges that his job was eliminated
and he was fired because he leveled charges of fraud and
misconduct against contractors who had been retained by the
Board. If the District Court finds that Thompson’s speech was
a matter of public concern, that the governmental interests in
efficient Board operations did not outweigh Thompson’s
interests as a citizen in commenting on matters of public
concern, that Thompson’s speech was a substantial or
motivating factor in the Board’s retaliation against him, and that
the Board would not have taken the same action absent
Thompson’s protected speech, then Thompson will have had a
full and fair hearing on his core complaint and he will secure all
the relief that he seeks in this law suit. No good purpose will be
served for the District Court to decide whether Thompson was
also denied procedural due process when he was terminated
 2

without a hearing if the trial court determines that Thompson is
entitled to relief on his First Amendment claim.
Indeed, given the posture of this case, it would appear that
the disposition of the First Amendment claim may dispose of the
entire case. If Thompson wins on his First Amendment claim,
there is no good reason to address his Fifth Amendment claim.
If he loses on his First Amendment claim that the RIF was a
pretext, it is hard to fathom what he will gain – in real terms –
from an order saying that he was entitled to notice and an
opportunity to discuss the RIF with his superiors before he was
terminated. No matter. Thompson’s complaint frames his due
process claim independently of the alleged First Amendment
violation, arguing that his status as a “career service employee”
entitled him to due process before being terminated. I therefore
accept the majority’s conclusion that Thompson’s Fifth
Amendment claim must be addressed if he loses on his First
Amendment claim, on the assumption that he may have been
denied proper notice and an opportunity to be heard before his
job was eliminated by RIF.
****
It is far from clear that Thompson has a viable claim under
the Fifth Amendment. I say this without meaning to prejudge
the issue. All that I mean to say is that this case poses some
baffling questions with respect to Thompson’s due process
claim. The only thing that is clear at this point is that the matter
cannot be resolved on the pleadings or on the vague assertions
advanced by the parties in their arguments to this court. Should
it become necessary for the District Court to resolve the due
process claim, the parties must first develop a coherent record
and then endeavor to square the facts in the record with existing
case law. This will be no mean feat.
Thompson’s claim that he was entitled to pretermination
process relies on principles first articulated in Cleveland Board
 3

of Education v. Loudermill, 470 U.S. 532 (1985). In Loudermill,
the Court held that a civil service employee who has a right to
continued employment has a constitutionally recognized
property interest that entitles him to “some kind of hearing”
before he is terminated. Id. at 542 (internal quotation marks and
citation omitted). “The need for some form of pretermination
hearing . . . is evident from a balancing of the competing
interests at stake. These are the private interest in retaining
employment, the governmental interest in the expeditious
removal of unsatisfactory employees and the avoidance of
administrative burdens, and the risk of an erroneous
termination.” Id. at 542-43 (citing Mathews v. Eldridge, 424
U.S. 319, 335 (1976)).
The Court made it clear, however, “that the pretermination
‘hearing,’ though necessary, need not be elaborate.” Loudermill,
470 U.S. at 545. Generally, a full evidentiary hearing is not
required if the affected employees are entitled to a full
administrative hearing and judicial review after termination. Id.
“The essential requirements of due process . . . are notice and an
opportunity to respond.” Id. at 546. “To require more than this
prior to termination would intrude to an unwarranted extent on
the government’s interest in quickly removing an unsatisfactory
employee.” Id.
****
Thompson’s dealings with the Lottery Board, at least as he
outlines them in his complaint, do not necessarily fit within the
compass of Loudermill. In order to determine whether
Thompson has presented a viable Fifth Amendment claim, the
District Court must determine whether Thompson was deprived
of a protected property interest, and, if so, whether he received
the process he was due. UDC Chairs Chapter, Am. Ass’n of
Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of
Columbia, 56 F.3d 1469, 1471 (D.C. Cir. 1995) (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). The first
 4

inquiry, whether Thompson had a property interest, is a matter
of local law. “Property interests are not created by the
Constitution, ‘they are created and their dimensions are defined
by existing rules or understandings that stem from an
independent source such as state law.’” Loudermill, 470 U.S. at
538; see also Bd. of Regents v. Roth, 408 U.S. 564, 577-78
(1972). The second inquiry has two elements. The District
Court must first decide, as a legal matter, what procedures were
required, and second, as a factual matter, whether the procedures
available to Thompson – if any – met the legal requirement.
****
In determining whether Thompson had a protected property
interest, the District Court will be forced to decide whether to
focus on the time before or after Thompson was transferred to
the new position that was eliminated by the Board during the
purported RIF. If Thompson’s earlier position is relevant for
assessing his due process entitlements, and if the District Court
finds that he was a career service employee subject only to
termination for cause, then Loudermill suggests that his
expectation in continued employment constituted a protected
property interest. See Loudermill, 470 U.S. at 538-39. On the
other hand, if the relevant focal point is Thompson’s RIF’d
position, it is less clear whether he enjoyed a property right.
At least two decisions issued by this court have suggested
that the existence of a property right in a government job –
particularly a position eliminated under the auspices of the
District’s 1996 Budget Act, as Thompson’s position ostensibly
was – does not survive a fiscally induced layoff. See Wash.
Teachers’ Union Local #6 v. Bd. of Educ. of the Dist. of
Columbia, 109 F.3d 774, 779-80 (D.C. Cir. 1997); Am. Fed’n of
Gov’t Employees v. Office of Pers. Mgmt., 821 F.2d 761, 767
(D.C. Cir. 1987). I suppose that the argument under this line of
analysis might be that an employee cannot hold a “property
right” tied to a RIF’d position, because a person in a position
 5

slated for a RIF has no reasonable expectation of continued
employment. I doubt that the case law of this circuit means to
go this far, however. To date, the most that we have said is that
“it is by no means obvious that a property interest. . . . survive[s]
a reduction-in-force.” Am. Fed’n of Gov’t Employees, 821 F.2d
at 767. And in Washington Teachers’ Union, the court
suggested only that “enactment of the 1996 Budget Act and of
the emergency rules” may have “extinguished [the RIF’d
employees’] property interests.” 109 F.3d at 779. It would be
a mistake to make too much of these decisions.
It is noteworthy that our sister circuits have not shared our
doubts about the survival of a property interest after a RIF,
especially where the former employee asserts that the RIF was
really a subterfuge for firing a particular individual. In West v.
Grand County, 967 F.2d 362, 367 (10th Cir. 1992), for example,
the Tenth Circuit explained that it had “no doubts” that an
employee alleging a pretextual RIF maintained her protected
property interest, arguing that the very function of a hearing
would be to determine whether or not the RIF had been
legitimate. Labeling an employee’s termination “a ‘reduction in
force’ does not affect her entitlement to a pretermination hearing
when she is asserting that the reduction in force was a sham
aimed particularly at her.” Id. at 368. The Seventh Circuit
employed similar reasoning in Lalvani v. Cook County, 396 F.3d
911 (7th Cir. 2005). The court emphasized that “the mere
intonation of the acronym ‘RIF’” does not avoid the need for a
due process hearing, the very purpose of which is “precisely to
find out whether the termination under the auspices of a RIF was
permissible or not.” Id. at 915 (citations and quotations
omitted); see also Whalen v. Mass. Trial Court, 397 F.3d 19, 26
(1st Cir. 2005) (stating that where “it seems inescapable that [an
employee’s] job performance” influenced selection for a
reorganization layoff, it is fundamental “that some process is
due”); Misek v. Chicago, 783 F.2d 98, 101 (7th Cir. 1986)
(“Accordingly, absent good cause, [RIF’d employees] were
 6

improperly dismissed unless on remand it should be determined
that their discharge was pursuant to an actual reorganization of
the agency.”).
This court has yet to determine what process is due when an
employee contends that his RIF was a subterfuge. We have
merely suggested that the extent of necessary pretermination
process may depend upon the number of individuals subject to
a RIF. See Wash. Teachers’ Union, 109 F.3d at 780-81; UDC
Chairs, 56 F.3d at 1474 (“Where, as here, the deprivation turns
on a policy decision and not on an individual’s characteristics,
a pre-deprivation hearing would do little to reduce the risk of
erroneous deprivation of the [employees’] interests.”); see also
Whalen, 397 F.3d at 25 (“[B]ecause reorganizations often affect
numerous employees, the governmental interest in efficient
administration may weigh more heavily in such
circumstances.”). It is significant, however, that this court has
never rejected the principle enunciated in West, i.e., that an
otherwise protected civil service employee alleging a pretextual
RIF retains his protected property interest and, thus, may insist
on notice and an opportunity to respond. See West, 967 F.2d at
367.
In this case, then, the question whether Thompson held a
protected property interest in his pre-transfer position will
antecede any further analysis. Whether or not a property interest
survives a RIF, Thompson will have no entitlement to notice and
a hearing of any sort if he never had a property interest in the
first place. Moreover, the facts alleged in this case are more
complicated than those presented in other circuits’ cases dealing
with allegedly pretextual RIFs. Whereas those cases dealt with
individuals who occupied protected positions slated for
elimination, they do not provide insight into how to treat an
employee who claims the sham was his transfer from a protected
position into a doomed position, not selection of the position to
be RIF’d. The District Court must consider this matter on
 7

remand in determining whether Thompson had a protected
property right.
****
If the District Court finds that Thompson had a protected
property right, it must next determine what process he was due.
It is important to note that courts finding a continued property
interest in RIF’d positions have demanded only the most skeletal
pretermination process. “The standards for a pretermination
hearing are not stringent because of the expectation that a more
formal post-termination hearing will remedy any resulting
deficiencies.” Id. Following the Court’s holding in Loudermill,
see 470 U.S. at 546, the West court noted that a “full evidentiary
hearing is not required,” but rather, “notice and an opportunity
to respond” suffices to meet the employer’s due process burden.
West, 967 F.2d at 367. The court therefore held that the
plaintiff’s opportunity to “discuss her potential termination”
with superiors represented adequate pretermination process for
a RIF’d employee, especially where the employee later received
a formal grievance hearing before presumptively neutral
decisionmakers. Id. at 368-69.
While the availability of post-deprivation proceedings may
limit how much pretermination process is due, the converse is
also true. The Seventh Circuit, for example, acknowledged that
“when there is an opportunity for a full post-termination hearing,
due process does not require an employer to provide full ‘trial-
type rights.’” Baird v. Bd. of Educ. for Warren Comm’ty Unit
Sch. Dist. No. 205, 389 F.3d 685, 690-91 (7th Cir. 2004). But
the court further held that “[a] state law breach of contract claim
is not an adequate post-termination remedy for a terminated
employee who possesses a present entitlement and who has been
afforded only a limited pre-termination hearing.” Id. at 692. To
avoid granting substantial pre-deprivation process to an
employee with a present entitlement to his job, an employer
must provide post-deprivation procedures that “are characterized
 8

by promptness and by the ability to restore the claimant to
possession.” Id.
If the District Court reaches the ultimate question – whether
the Lottery Board denied Thompson process that he was due –
its answer will depend on a critical examination of what pre-
deprivation processes were available to Thompson, and the
extent to which their efficacy was bolstered by the promise of
more formal proceedings down the road. The inquiry will be
fact-intensive, focusing on whether Thompson received notice
of his precarious employment situation; whether he conferred
with superiors about his status; and, if he did not confer with his
superiors, whether he had the opportunity to do so.
These threshold questions are important, because, at least
based on the pleadings, it is impossible to tell precisely how
much “notice” Thompson received in advance of his job moves
and ultimate termination, and whether he talked with his
superiors about his situation. Indeed, it is unclear whether
Thompson even contends that he was foreclosed from contesting
his transfer to the job that was eliminated. It may be that
Thompson was unaware that the job into which he was
transferred was unprotected, but that remains to be determined.
In answering these questions, the District Court will also
need to ascertain exactly what post-deprivation procedures were
available to Thompson. For example, it appears that, at the time
of the events giving rise to this law suit, employees alleging
retaliatory RIFs could “institute a civil action in the Superior
Court,” which could impose injunctive or monetary remedies.
D.C. CODE. § 1-616.3(c) (1998 Repl.). An action initiated under
that provision would “[o]perate as an exhaustion of the
employee’s administrative remedies” and “[c]onstitute the
employee’s exclusive remedy under the laws of the District.”
Id. § 1-616.3(e). It is unclear whether Thompson qualified for
these procedures – or, alternatively, whether a comparable
provision applied – and whether he had access to whatever
 9

procedures were available. It is also unclear whether the
procedures statutorily accorded to Thompson contained
adequate safeguards to buttress whatever less formal notice-and-
hearing opportunities were available to him before his
termination.
****
There is reason to believe that the District Court’s
resolution of Thompson’s First Amendment claim will dispose
of this case. That will be fortunate indeed, because the Fifth
Amendment claim raises some perplexing questions that will not
be easily resolved, especially on a spare and confusing record
like the one that is now before the court.