Thompson v. District of Columbia

• Decision Date: 27 June 2008
• Docket Number: No. 07-7067.,07-7067.
• Citation: 530 F.3d 914
• Parties: James A. THOMPSON, Jr., Appellant v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

530 F.3d 914

James A. THOMPSON, Jr., Appellant v.DISTRICT OF COLUMBIA, et al., Appellees.

No. 07-7067.

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 2008.

Decided June 27, 2008.

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.

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.SeePeters 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, 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.SeeThompson v. District of Columbia,428 F.3d 283(D.C.Cir.2005).On remand, the district court again dismissed his claims, seeThompson 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."SeeThompson,428 F.3d at 285-87.Shortly thereafter, the Supreme Court decided Garcetti v. Ceballos,547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689(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, 126 S.Ct. 1951.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, 126 S.Ct. 1951.However, the First Amendment places no restrictions on the government's right to punish employees for speech made "pursuant to their official duties."Id. at 421, 126 S.Ct. 1951.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, 126 S.Ct. 1951.

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.SeeDavis 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, 126 S.Ct. 1951.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.

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(quotingGarcetti,547 U.S. at 422, 126 S.Ct. 1951).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 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 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, 105 S.Ct. 1487, 84 L.Ed.2d 494(1985).Thompson had a property interest in his job only if, under District of Columbia...