United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2008 Decided June 27, 2008
No. 07-7067
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)
S. Micah Salb argued the cause and filed the briefs for
appellant.
William J. Earl, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With him on the brief were
Peter J. Nickles, Interim Attorney General, Todd S. Kim,
Solicitor General, and Donna M. Murasky, Deputy Solicitor
General.
2
Before: GINSBURG, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: James A. Thompson, Jr., appeals
the dismissal of his claims that the District of Columbia
retaliated against him for exercising his First Amendment
rights and fired him without affording him due process. We
affirm the district court’s conclusion that the First
Amendment did not protect Thompson’s speech, but reverse
its holding that Thompson had no right to due process.
I
Because the district court granted the District of
Columbia’s motion for judgment on the pleadings, we review
its decision de novo, accepting as true all the allegations in
Thompson’s complaint. See Peters v. Nat’l R.R. Passenger
Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992).
Thompson, while employed as Chief of Security for the
District of Columbia Lottery and Charitable Games Control
Board (“Lottery Board”), began investigating misconduct by
the Lottery Board and some of its contractors. Thompson’s
supervisors responded to his inquiries by disparaging and
reprimanding him, and shuffling him among various security
and audit positions. Undeterred, Thompson continued to
investigate and report the results to Lottery Board officials.
As a final measure of retaliation, in August 1996, a supervisor
reassigned Thompson from his job as Security Systems
Administrator to a post as Security Officer. The very next
day, he told Thompson the new job had previously been
designated for elimination under an agency-wide reduction-
in-force, effective in September 1996, and then placed him on
leave. When Thompson’s job was eliminated in September,
3
he was reassigned to a temporary post, which he held until it
expired in January 1997. Compl. ¶¶ 10–24, 32–33, 45–70.
Thompson sued the District of Columbia and others,
alleging (among other claims) that the District punished him
for First Amendment-protected speech and fired him in
violation of the Due Process Clause of the Fifth Amendment.
In 2004, the district court dismissed Thompson’s complaint,
but this court reversed the dismissal. See Thompson v.
District of Columbia, 428 F.3d 283 (D.C. Cir. 2005). On
remand, the district court again dismissed his claims, see
Thompson v. District of Columbia, 478 F. Supp. 2d 5 (D.D.C.
2007), and Thompson again appeals.
II
Thompson alleges the District of Columbia violated his
First Amendment rights by punishing him for speaking out
about corruption. The last time Thompson’s case came
before this court, we reversed the dismissal of his First
Amendment claim, explaining the complaint did not provide a
sufficient factual record for the district court to balance
Thompson’s interest “in commenting upon matters of public
concern” with the government’s interest in “promoting the
efficiency of the public services it performs through its
employees.” See Thompson, 428 F.3d at 285–87. Shortly
thereafter, the Supreme Court decided Garcetti v. Ceballos,
547 U.S. 410 (2006), holding that a threshold question—
“whether the [government] employee spoke as a citizen”—
must be decided before any balancing of interests. Id. at 418.
As the Court explained, “[t]he First Amendment limits the
ability of a public employer to leverage the employment
relationship to restrict … the liberties employees enjoy in
their capacities as private citizens.” Id. at 419. However, the
First Amendment places no restrictions on the government’s
4
right to punish employees for speech made “pursuant to their
official duties.” Id. at 421. Whether employees spoke
pursuant to their official duties, and thus receive no First
Amendment protection, is a “practical” inquiry—focusing not
on formal job descriptions, but on the employees’ actual
responsibilities. Id. at 424.
Ordinarily, employees who make recommendations to
their supervisors on subjects directly related to their jobs are
carrying out their official duties and thus receive no First
Amendment protection. See Davis v. McKinney, 518 F.3d
304, 313 n.3 (5th Cir. 2008) (“the caselaw is unanimous in
holding that employee’s communications that relate to his
own job function up the chain of command, at least within his
own department or division, fall within his official duties and
are not entitled to First Amendment protection.”). In
Garcetti, the Supreme Court concluded that a calendar deputy
for a state district attorney’s office, who wrote a
memorandum to his supervisors recommending the dismissal
of a pending prosecution, was speaking as part of his job. 547
U.S. at 421. Similarly, in Wilburn v. Robinson, 480 F.3d
1140, 1150–51 (D.C. Cir. 2007), this court held an employee
who complained to her employer’s personnel office about
discrimination in salary decisions was speaking pursuant to
her employment responsibilities, which included exposing
discriminatory practices in salary and hiring matters.
Significantly, in Freitag v. Ayers, 468 F.3d 528 (9th Cir.
2006) (as amended), the Ninth Circuit held a prison guard
who informed her state Senator and Inspector General about
harassment she suffered at work was speaking as a citizen,
and thus protected by the First Amendment; but also held she
was speaking as an employee when she reported the same
misconduct to her supervisors. Id. at 545–46.
5
When employees make recommendations to supervisors
on subjects directly related to their jobs, they are speaking as
employees even if the supervisors discourage this speech. In
Green v. Board of County Commissioners, 472 F.3d 794 (10th
Cir. 2007), a lab technician alleged her bosses retaliated
against her for disregarding their instructions and sending
samples for outside testing. The Tenth Circuit explained the
First Amendment did not protect the employee from
discipline because “[h]er disagreement with her supervisors’
evaluation of the need for a formal testing policy, and her
unauthorized obtaining of the confirmation test to prove her
point, inescapably invoke Garcetti’s admonishment that
government employee’s First Amendment rights do ‘not
invest them with a right to perform their jobs however they
see fit.’” Id. at 801 (quoting Garcetti, 547 U.S. at 422).
Similarly, in McGee v. Public Water Supply, 471 F.3d 918
(8th Cir. 2006), an employee alleged his boss fired him for
speaking out about a project’s non-compliance with
environmental standards. The Eighth Circuit held his speech
was part of his job responsibilities, and thus not protected by
the First Amendment, even though his supervisor had already
removed him from the project and told him not to worry
about any environmental problems. Id. at 921.
In this case, Thompson began his investigations when he
was Chief of Security, charged with “protecting the assets and
personnel of the D.C. Lottery through a comprehensive
system of physical and internal controls designed to detect
fraud, waste, and abuse within all operational components of
the D.C. Lottery.” Compl. ¶ 11. He claims at least some of
his subsequent investigations were outside of his job duties,
largely because his supervisors shuffled him among various
security and auditor positions. For example, when Thompson
tried to audit a contractor for failing to reimburse the Lottery
Board, one of his supervisors “directed [him] to leave [the
6
contractor] alone, telling [him] that he was not permitted to
audit [the contractor] because he had no right or authority to
do so.” Compl. ¶ 19.1
Thompson’s argument is no different from that rejected
in Green and McGee. He does not dispute that his initial
investigation was a direct part of his job duties, and thus
unprotected by the First Amendment. He continued to press
on with similar investigations despite interference and
transfers—but throughout the entire period, his job was
related to maintaining the integrity of the Lottery Board’s
operations and finances, albeit in changing capacities.
Instructively, he continued to report his findings to Lottery
Board officials, through verbal communications and written
reports. As our sister circuits recognized in Green and
McGee, it would be incongruous to interpret Garcetti, a case
concerned with allowing the government to control its
employees within their jobs, as giving broader protections to
disobedient employees who decide they know better than
their bosses how to perform their duties. In sum, we hold
Thompson’s complaints to Lottery Board officials about
corruption were clearly made pursuant to his official job
duties and thus the District of Columbia did not violate his
First Amendment rights by sanctioning him for his speech.
III
Thompson alleges the District of Columbia terminated
him without affording him the procedures guaranteed by the
1
Thompson urges us to go beyond the complaint and consider
deposition testimony from two of his supervisors, who claimed he
was acting outside of his duties during some of his investigations.
We need not decide whether we can consider this testimony
because the complaint already alleges that Thompson’s supervisors
told him he was acting outside of his official duties.
7
Due Process Clause of the Fifth Amendment. To state a valid
procedural due process claim, Thompson must first show he
had a protected property interest in his job. “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.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 538 (1985). Thompson had a property interest in his job
only if, under District of Columbia law, “he did not serve in
his job at his employer’s ‘will,’ but he could be removed only
‘for cause.’” Laureano-Agosto v. Garcia-Caraballo, 731
F.2d 101, 103 (1st Cir. 1984). At the relevant time, the
District of Columbia’s Comprehensive Merit Personnel Act
(“CMPA”) provided a “permanent employee in the Career or
Educational Service … may be … removed from the Service
only for cause and only in accordance” with the provisions of
the CMPA. D.C. Code § 1-617.1(b) (1981) (emphasis
added). Accordingly, a D.C. Career Service employee had a
protected property interest in his job and could not be
“removed from the Service” without receiving due process.
See D.C. Dep’t of Corr. v. Teamsters Union Local No. 246,
554 A.2d 319, 326 (D.C. 1989).
Assuming Thompson’s job was a Career Service
position, we must decide whether he correctly claims he was
“removed from the Service” in August 1996.2 At that time,
Thompson’s boss moved him from a permanent position as a
Security Systems Administrator to a job as a Security Officer,
informed him the new job was already slated for elimination
under an agency-wide reduction-in-force (“RIF”), effective
the following month, and immediately placed him on leave.
Under the law of both the District of Columbia and this
Circuit, an employee with a property interest in his job has the
2
Later in this section, we turn to whether Thompson’s job was a
Career Service position at this time.
8
right to due process if he raises a non-frivolous claim that his
employer eliminated his job, not as a genuine cost-saving
measure, but as a pretext for getting rid of him. See Levitt v.
D.C. Office of Employee Appeals, 869 A.2d 364, 366 & n.4
(D.C. 2005) (citing Fitzgerald v. Hampton, 467 F.2d 755,
758–60 (D.C. Cir. 1972)); Thompson, 428 F.3d at 288. This
case presents a somewhat different question: When an
employee is transferred to a position scheduled for imminent
elimination under an otherwise legitimate RIF, does the
deprivation of his property interests occur when he is
transferred or when the RIF actually eliminates the position? 3
We hold that when an employer attempts to get rid of an
employee by transferring him from a Career Service position
to a job already scheduled for imminent elimination pursuant
to an otherwise legitimate RIF, the employee is constructively
removed from the Service at the time of the transfer. Cf.
Clark v. Twp. of Falls, 890 F.2d 611, 618 (3d Cir. 1989)
(constructive demotions can trigger due process rights).
While no case we have found confronted this exact situation,
our holding is consistent with District of Columbia and
Circuit law because it recognizes a Career Service employee’s
right to due process at the time of the allegedly pretextual
action. See Levitt, 869 A.2d at 366 & n.4 (citing Fitzgerald,
467 F.2d at 758–60). Indeed, it would make little sense to
hold an employee’s due process rights are not triggered until
the RIF actually eliminates his job, in a case where the RIF is
a genuine streamlining measure that the employee has not
3
We do not address the question of when the deprivation of a
property interest occurs in a situation where the employee alleges
his employer came up with an illegitimate RIF specifically to get
rid of him. See, e.g., Levitt, 869 A.2d at 366 (employer transferred
employee into a newly created Career Service position and then
abolished the “very position it had specifically created for him.”).
9
challenged. It is far more sensible to allow the employee to
bring his challenge at the time of the prextual action—his
pretextual transfer to the doomed position.
Applying these principles to the present case is
straightforward. Thompson’s boss moved him to a job that
was scheduled for elimination under an agency-wide RIF.
Thompson does not argue that this RIF, which eliminated
many positions for streamlining purposes, was illegitimate.
Rather, his claim is he was transferred to one of the positions
scheduled for elimination as a mere pretext for getting rid of
him. Accordingly, assuming Thompson was a Career Service
employee in August 1996, his transfer was a constructive
“removal from the service” under the CMPA because he
raised a non-frivolous claim that this transfer was pretextual.4
Next, we must decide whether Thompson was a Career
Service employee in August 1996. The parties agree that
Thompson was a Career Service employee throughout most
of his time with the Lottery Board. The remaining dispute is
whether anything deprived him of Career Service status
before August 1996. On April 26, 1996, Congress enacted
the Omnibus Consolidated Rescission and Appropriations Act
(“OCRA”), Pub. L. No. 104-134, § 152(a), 110 Stat. 1321,
1321-102, which provided, in pertinent part:
[T]he heads and all personnel of the following offices,
together with all other District of Columbia executive
4
The District of Columbia argues Thompson was not deprived of
his job until January 1997, when the temporary position to which
he was assigned after the September 1996 RIF, expired. We need
not decide whether the January 1997 termination was a “remov[al]
from the Service,” within the meaning of CMPA, because
answering that inquiry does not change the status of the August
1996 transfer as a constructive removal, requiring its own process.
10
branch accounting, budget, and financial management
personnel, shall be appointed by, shall serve at the
pleasure of, and shall act under the direction and
control of the Chief Financial Officer: The Office of
the Treasurer. The Controller of the District of
Columbia. The Office of the Budget. The Office of
Financial Information Services. The Department of
Finance and Revenue.
In Leonard v. District of Columbia, 794 A.2d 618, 625–27
(D.C. 2002), the D.C. Court of Appeals held all employees
covered by OCRA became at-will, with no property interests
in their job. However, OCRA did not cover Lottery Board
employees—the Lottery Board was not one of OCRA’s listed
offices or departments and the District of Columbia’s brief
does not argue that Lottery Board employees were “other
District of Columbia executive branch accounting, budget,
and financial management personnel” at any point before
Thompson was placed in the doomed position in August
1996.5 Rather, the District points to two orders issued by the
District of Columbia Financial Responsibility and
Management Assistance Authority and the District of
Columbia Chief Financial Officer (“CFO”), which purported
to place the Lottery Board under the CFO and make its
employees at-will. Whatever the impact or validity of these
orders, they have no effect on this case because they issued in
5
The Lottery Board was established in 1981 and consisted of five
members, appointed by the Mayor of the District of Columbia. See
D.C. Code. § 3-1301. The record sheds no light on the proper
classification of Board employees, so we rest our decision on the
District’s failure to argue these employees were “other District of
Columbia executive branch accounting, budget, and financial
management personnel,” within the meaning of OCRA.
11
September 1996, a month after Thompson was constructively
removed from the Service.6
Thompson was a Career Service employee when his
supervisor transferred him to a doomed position in order to
get rid of him, thus depriving him of his property interest in
his job. Because the District of Columbia does not argue that
Thompson’s claim of pretext was frivolous and does not
contend it afforded him sufficient process, we reverse the
dismissal of his due process claim.
* * *
The judgment of the district court is therefore affirmed in
part and reversed in part, and the case is remanded for further
proceedings.
So ordered.
6
Any other subsequent changes to the status of Lottery Board
employees are similarly irrelevant.