James Thompson, Jr. v. DC , 832 F.3d 339 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2015 Decided August 12, 2016
No. 14-7210
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. 1:97-cv-01015)
S. Micah Salb argued the cause for appellant. With him
on the briefs was Dennis Chong.
Mary L. Wilson, Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee District of Columbia. With her
on the brief were Karl A. Racine, Attorney General, Todd S.
Kim, Solicitor General, and Loren L. AliKhan, Deputy
Solicitor General.
Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In 1996, the District of
Columbia Lottery and Charitable Games Control Board
terminated James Thompson, Jr.’s employment by assigning
him to a position that had been marked for elimination only
the day before. Thompson filed suit under 42 U.S.C. § 1983,
alleging in part that his termination violated his Fifth
Amendment right to due process. In the almost twenty years
since, the district court has dismissed Thompson’s complaint
three times, and we have reversed two of those dismissals.
Before us now is the district court’s most recent dismissal of
Thompson’s complaint, as well as its denial of his motion for
summary judgment. We reverse the district court again and
remand for the district court to enter partial summary
judgment for Thompson. Only two issues will then remain to
be resolved on the merits: whether the District can be held
liable under section 1983 for the violation of Thompson’s due
process rights and, if it can, a determination of the damages.
I
James A. Thompson, Jr. is an experienced auditor and
security systems expert. He served as the Chief of the
Financial Division of the Metropolitan Police for several
years before joining the Lottery and Charitable Games
Control Board (Lottery) as an auditor in 1985. Once at the
Lottery, he was promoted twice before becoming Security
Systems Administrator in 1996. In this position, Thompson
spearheaded efforts to identify threats to the integrity of the
Lottery’s operations.
Thompson’s tenure soured, however, when several audits
he supervised unearthed what he thought was unethical, if not
illegal, behavior. For example, in a February 1996 audit,
3
Thompson found that equipment purchased by the Lottery
from a subcontractor for almost $7 million had been placed on
a depreciation schedule that gave the equipment “no monetary
value” just five years later. J.A. 149-53. In his report,
Thompson explained that Lottery officials had certified the
computer equipment as worthless and returned it to the same
subcontractor for “disposal” as part of a new purchase
agreement. Id. The audit report described this as “an
excessively costly business decision,” in part because the
equipment likely had at least some monetary value due to
recent upgrades. Id. at 150-51. Thompson concluded, as a
result, that the “business arrangement [was] unethical at the
best; and may be interpreted as a misappropriation of
government assets, at worst.” Id. at 157. This conclusion,
Thompson further noted, was consistent with news reports of
misappropriation and fraudulent procurement activities at the
Lottery. 1 Id.
Throughout the summer of 1996, Thompson brought the
troubling conduct he had uncovered to the attention of his
supervisor, the Lottery’s Executive Director, Frederick King.
But King refused to investigate the misconduct. Instead, King
put an end to Thompson’s employment. On August 22, 1996,
in the midst of a District budget crisis, King designated a
Security Officer position for elimination through a reduction
1
Thompson’s reports and the newspaper articles were not the
only indications that the Lottery’s contracting practices were highly
irregular. A later external investigation by the District’s Financial
Responsibility and Management Assistance Authority confirmed
that “the contracting practices of the Lottery . . . raise[d] serious
questions of propriety and conflict of interest.” J.A. 165. The issues
the Authority found were serious enough that the Lottery was
required to revise one of its “major contracts.” Id.
4
in force. 2 The next day, King reassigned Thompson from his
job as Security Systems Administrator to the doomed
position.
The Lottery gave Thompson no notice of this
reassignment and offered him no hearing to challenge the
action. In fact, the personnel form signed by King to
effectuate the reassignment represented only that the action
fixed “a classification error.” Regardless of what it was
called, this fix left Thompson without a job because several
days later, King called Thompson into his office to inform
him that his position had been eliminated in a reduction in
force. King gave Thompson a personnel form explaining that
he would be removed from service in 30 days and that he had
a right to appeal that separation to the District’s Office of
Employee Appeals. But the form made no mention of
Thompson’s prior reassignment to the position that had been
marked for elimination. As a result, it did not inform
Thompson of any right he might have had to challenge that
employment action. That same day, King also placed
Thompson on paid leave for several weeks. While Thompson
was eventually allowed to return to work in a temporary
position, that position expired in January 1997, again leaving
Thompson without a job. Soon after, the Lottery hired a new
security manager.
Later that same year, the Lottery Control Board removed
King from office after an FBI investigation into the Lottery’s
2
A reduction in force is a “reduction in personnel caused by a
lack of funding or the discontinuance or curtailment of a
department, program or function of an agency” that has no
“punitive or corrective” role. See Davis v. Univ. of D.C., 603 A.2d
849, 852 n.8 (D.C. 1992). See generally William E. Slack & Mark
G. Weisshaar, Note, Reduction in Force: A Guide for the
Uninitiated, 44 GEO. WASH. L. REV. 642 (1976).
5
operations. The Board found that King had “expos[ed] the
agency to liability” through his questionable “personnel and
other actions.” J.A. 163. In particular, the Board identified
King’s “dismantl[ing] the security division, [and thus] putting
the agency at risk,” as a justification for his removal. Id.
On May 12, 1997, Thompson filed this action under 42
U.S.C. § 1983, claiming, as relevant here, that he was denied
his Fifth Amendment right to due process prior to his
termination at the Lottery. See U.S. CONST. amend. V. After a
motions practice that lasted seven years, the district court
concluded that Thompson had failed to state a claim. We
reversed the district court in Thompson v. District of
Columbia, 428 F.3d 283 (D.C. Cir. 2005) (“Thompson I”),
holding that Thompson stated a claim when he alleged that he
was transferred without due process to a position that was
immediately eliminated in a reduction in force. Id. at 288.
On remand, the district court dismissed the case once
again, this time concluding that because Thompson had no
protected property interest in his position, he was unable to
establish an essential element of a due process claim.
Thompson v. District of Columbia, 478 F. Supp. 2d 5, 9-10
(D.D.C. 2007); see UDC Chairs Chapter, Am. Ass’n of Univ.
Professors v. Bd. of Trs. of the Univ. of D.C., 56 F.3d 1469,
1471 (D.C. Cir. 1995) (explaining that the two prongs of a
due process claim are whether the employee was deprived of
a protected interest, and if so, whether he received the process
he was due). We reversed the district court in Thompson v.
District of Columbia, 530 F.3d 914 (D.C. Cir. 2008)
(“Thompson II”), holding that Thompson had a protected
property interest in his position because he was a career civil
servant under District of Columbia law and that he could not
be removed from that position without due process. Id. at
918-20. We also held that transferring Thompson to a
6
canceled position was a constructive removal from service
that deprived him of his protected interest in his job. Id. at
919.
For nearly five years after this second remand, the district
court presided over another lengthy pretrial process. On
March 1, 2013, Thompson filed a motion for summary
judgment, in which he argued that there were no factual issues
left to be resolved after nearly sixteen years of discovery, and
that the undisputed facts demonstrated that he was entitled to
judgment as a matter of law. Almost a year later, the district
court denied that motion without explanation in a minute
order. Thompson then tried a new tack. He filed a motion to
set a trial date or, in the alternative, to reassign the case to a
judge who had docket space for an immediate trial. In his
motion, Thompson pointed out that his case had stalled well
past the four years that it takes an average litigant in our
district courts to complete a trial and notified the court that he
was of increasingly poor health and advanced age.
The district court responded by holding a pretrial
conference where the court directed the parties to file
additional pleadings on what damages a jury could award
Thompson. After considering the parties’ responses, and with
no motion to dismiss before it, the district court entered a
minute order dismissing Thompson’s action for the third time.
The written order that followed explained that Thompson
could not recover compensatory damages for his termination
unless he could show that he would not have been terminated
had he been given due process. Thompson v. District of
Columbia, No. 97–1015 (D.D.C. Feb. 18, 2015). In the
district court’s view, Thompson had made no such showing.
Id. Thompson appealed.
 7
We treat this most recent dismissal as a grant of summary
judgment to the District, because the district court went
beyond the pleadings. See id. (reasoning that Thompson “has
offered no such evidence” to support his damages claim);
Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir.
2003) (per curiam). We have jurisdiction under 28 U.S.C.
§ 1291 to review the district court’s decision, as well as its
earlier denial of Thompson’s motion for summary judgment.
Our review is de novo. Wilburn v. Robinson, 480 F.3d
1140, 1148 (D.C. Cir. 2007). We view the evidence in the
light most favorable to the party opposing summary
judgment, draw all reasonable inferences in that party’s favor,
and avoid weighing the evidence or making credibility
determinations. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.
Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000)). Summary judgment is appropriate only
if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). There is a genuine issue of material fact “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Because Thompson seeks to hold the District liable under
section 1983, he must show not only that his right to due
process was abridged, but that a policy or custom of the
District caused the violation. See Warren v. District of
Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). We conclude
that Thompson has shown that his due process rights were
violated and that this violation caused his alleged damages.
Accordingly, we reverse the district court’s grant of summary
judgment to the District and, in part, its denial of Thompson’s
motion for summary judgment. But we remand to the district
court to address whether the District can be held liable under
8
section 1983 for this violation and, if it can, for a
determination of the amount of damages to which Thompson
is entitled.
II
We engage in a “familiar two-part inquiry” to determine
whether Thompson’s due process rights were violated. See
UDC Chairs Chapter, 56 F.3d at 1471 (quoting Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). We must
determine whether Thompson was deprived of a protected
interest, and, if so, whether he received the process to which
he was entitled. Id. In Thompson II, we already decided
Thompson was deprived of a protected property interest in his
Security Systems Administrator position when he was
transferred to the Security Officer position. 530 F.3d at
918-20. Typically, we would then need only to ask whether
Thompson received the process he was due. Because the
District does not contest that Thompson received no notice of
the reassignment that effectively ended his full-time
employment work at the Lottery, our inquiry should be at an
end. But the District resists this result on two separate
grounds, neither of which has merit.
The District urges us to revisit our conclusion in
Thompson II that Thompson was deprived of his property
interest at the time of his assignment to the Security Officer
position. Id. Our conclusion from Thompson II is not binding,
the District contends, because there we were asked to review
the dismissal of a complaint and had to accept as true
Thompson’s allegations. But now that our review is at
summary judgment, the District argues that a reasonable juror
could question whether the Lottery’s employment action was
a “transfer” and instead conclude that the Lottery merely
“reclassified” Thompson. The District relies on a single
9
personnel form issued on the date Thompson was reassigned,
which summarily states that the change corrected a
classification error. Correcting this error, the District argues,
is not a “transfer” that triggers any process.
But the argument that Thompson was “reclassified”
rather than “transferred” rests on a distinction without a
difference. The bottom line of our holding in Thompson II
was that Thompson, as a career civil servant, was stripped of
his property interest when he was placed in a position that had
previously been marked for elimination. We will not revisit
that legal conclusion now. See Crocker v. Piedmont Aviation,
Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (“When there are
multiple appeals taken in the course of a single piece of
litigation, law-of-the-case doctrine holds that decisions
rendered on the first appeal should not be revisited on later
trips to the appellate court.”). Whether Thompson was
“transferred” or “reclassified” into this position, he was
effectively terminated at that time because the Security
Officer position had already been slated for elimination. For
our purposes, it is the substance of a constructive termination,
and not the semantics of a “transfer” or “reclassification,” that
matters in determining whether Thompson was deprived of
his protected property interest in his job.
We likewise reject the District’s argument that Thompson
received all of the process that he was due. In support, the
District points to the notice that Thompson received of his
right to challenge the elimination of his new position in the
reduction in force. But, as we explained in Thompson II,
Thompson was constructively terminated at the time of his
transfer, not when this new position was eliminated. He thus
had a right to notice of that transfer and a hearing to challenge
his transfer before it was made. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (explaining that
10
constitutional due process requires a hearing “prior to the
discharge of an employee who has a constitutionally protected
property interest in his employment” (emphasis added));
Thompson II, 530 F.3d at 919 (“District of Columbia and
Circuit law . . . recognize[] a Career Service employee’s right
to due process at the time of the allegedly pretextual action.”
(emphasis added)). The District does not contend that
Thompson received any such notice or opportunity to contest
the transfer. And, although the Supreme Court has indicated
that a hearing may be postponed in “extraordinary situations
where some valid governmental interest is at stake,” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 570 n.7 (1972)
(citation omitted), the District does not argue that any such
circumstances existed in this case. At a minimum then,
Thompson’s pre-deprivation right to due process was violated
when the District assigned him to a position scheduled for
imminent elimination without notice or a hearing.
Moreover, Thompson testified that he was never notified
of his right to contest the transfer. The District never presents
any evidence in rebuttal by showing, for example, that he was
in fact notified of this right at a meaningful time after the
constructive termination. See Propert v. District of Columbia,
948 F.2d 1327, 1331-32 (D.C. Cir. 1991) (“The essence of
due process is the requirement that a person in jeopardy of
serious loss [be given] notice of the case against him and
opportunity to meet it . . . at a meaningful time and in a
meaningful manner.” (citations omitted)). The hearing the
District offered Thompson to challenge the elimination of the
Security Officer position did not give him a meaningful
opportunity to contest the prior constructive termination
because Thompson was never notified that he could challenge
that action. As a result, we conclude that Thompson’s right to
due process was violated.
11
III
The District is correct that Thompson cannot recover
compensatory damages arising from a termination that would
have occurred even had he been given due process. See Carey
v. Piphus, 435 U.S. 247, 263 (1978); see also Montgomery v.
City of Ardmore, 365 F.3d 926, 937 (10th Cir. 2004). But the
district court erred when it granted summary judgment to the
District on the ground that Thompson failed to show that, had
he been given due process, he would have kept his job. Once
a plaintiff establishes that he was terminated without due
process and demonstrates damages arising from that
termination, the defendant is responsible for those damages
unless the defendant shows they would have occurred
regardless. See, e.g., Brewer v. Chauvin, 938 F.2d 860,
864-65 (8th Cir. 1991) (en banc). Because Thompson met his
burden under this framework and the District failed to meet its
burden, Thompson is entitled to recover any compensatory
damages that he can show resulted from his termination.
In Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), the Court
considered a suit for damages based on a claimed violation of
the First Amendment. Doyle was an untenured teacher
involved in several incidents of allegedly unprofessional
behavior. Id. at 281-82. After the school board decided that
Doyle should not be rehired, id. at 282-83 n.1, Doyle sued,
claiming the decision violated his First Amendment right to
free speech. The district court agreed and held that Doyle was
entitled to backpay and reinstatement. Id. at 283-86. The
Supreme Court affirmed that a constitutional violation had
occurred, but concluded that the school board was entitled to
“attempt[] to prove to a trier of fact that quite apart from such
conduct Doyle’s record was such that he would not have been
rehired in any event.” Id. at 286. The Court thus placed the
12
burden on Doyle to show that his conduct was constitutionally
protected and a substantial factor in the school board’s
adverse employment decision. Id. at 287. But once that
burden was met, the school board could escape responsibility
for the resulting damages by showing that it would have
declined to rehire Doyle for reasons other than his conduct
protected by the First Amendment. Id.
The Court reaffirmed this framework a year later in
Carey v. Piphus, 435 U.S. 247 (1978). There, schoolchildren
argued that they had been suspended without due process and
sought compensatory damages. In reversing the district
court’s dismissal of the complaints, the Seventh Circuit
recognized that the defendants could avoid paying
compensatory damages if they could show, on remand, that
the children would have been suspended even with a hearing.
Id. at 260. The Supreme Court agreed, id., and ever since then
has assumed that this framework applies when it considers
damages for other constitutional torts. See, e.g., Texas v.
Lesage, 528 U.S. 18, 21 (1999) (per curiam) (describing the
underlying principle in constitutional tort claims as providing
that “[t]he government can avoid liability by proving that it
would have made the same decision without the
impermissible motive”).
The best reading of Doyle and Carey—as the Third,
Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have
held—is that a plaintiff can recover compensatory damages
for a defendant’s unconstitutional conduct unless the
defendant shows that the injury would have occurred
anyway. 3 This rule is especially well suited to cases like
3
See Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984); Wheeler
v. Mental Health & Mental Retardation Auth. of Harris Cty., Tex.,
752 F.2d 1063 (5th Cir. 1985); Franklin v. Aycock, 795 F.2d 1253
(6th Cir. 1986); Patkus v. Sangamon-Cass Consortium, 769 F.2d
13
Thompson’s, where the defendant is in the best position to
prove an alternative, permissible justification for its adverse
employment action. Accordingly, the district court erred when
it granted summary judgment to the District on the basis that
Thompson—the plaintiff—had not shown that he would have
kept his job even given notice and a hearing. This was the
District’s burden and no reasonable juror could conclude from
the record that it was met.
The District protests that a reasonable juror could
conclude that Thompson would have been terminated for
cause based on an allegedly adverse performance evaluation
that he received a month before his termination. But the
District conceded below that the “satisfactory rating” that
Thompson received was not adverse. See Defs.’ Resp. to Pl.’s
Statement of Material Facts that Are Not Disputed, No.
97-cv-01015, J.A. 263 (“[T]he defendants deny that the
plaintiff received any adverse performance evaluation in July
3, 1996, and submit that the reason that he received a
‘satisfactory rating’ is due to the fact that his supervisor only
evaluated him for three months and did not have sufficient
time to evaluate Mr. Thompson as a manager.”). The District
cannot change its position now. In any event, a reasonable
juror could not conclude that a “satisfactory” rating provided
cause to fire Thompson.
In sum, Thompson has done everything required to show
that the damages arising from his termination were caused by
the violation of his due process rights. The District has not
met its burden to show that Thompson would have lost his
position even if he had received due process and, as a result,
1251 (7th Cir. 1985); Brewer v. Chauvin, 938 F.2d 860 (8th Cir.
1991) (en banc); McClure v. Indep. Sch. Dist. No. 16, 228 F.3d
1205 (10th Cir. 2000). But cf. Miner v. City of Glens Falls, 999
F.2d 655 (2d Cir. 1993).
14
we reverse the district court’s grant of summary judgment to
the District and remand for the district court to enter partial
summary judgment for Thompson as to the violation of his
due process rights.
IV
The District asserts that, even if Thompson was denied
due process, Monell v. Department of Social Services, 436
U.S. 658 (1978), shields the city from liability for his
termination. In Monell, the Supreme Court established that a
municipality is liable under 42 U.S.C. § 1983 for
constitutional violations caused by its policies or customs. Id.
at 690-91. But “a municipality cannot be held liable solely
because it employs a tortfeasor—or, in other words, a
municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691. The injury must
instead be inflicted by municipal “lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.” Id. at 694. The Supreme Court has held that a single
action can represent municipal policy where the acting official
has final policymaking authority over the “particular area,
or . . . particular issue.” McMillian v. Monroe Cty., 520 U.S.
781, 785 (1997); City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988) (plurality opinion). Here, that means the District is
liable for Thompson’s termination if King was a final
policymaker for Lottery personnel decisions at the time of the
reduction in force that cost Thompson his job. But the district
court did not reach this issue and we cannot decide it on the
inadequate record before us. As a result, we must remand this
issue to the district court for further development.
Determining whether an official is a final policymaker
for section 1983 purposes is no simple task. See Auriemma v.
Rice, 957 F.2d 397, 400 (7th Cir. 1992) (describing the
15
decisions of the circuits on this issue as “so varying that there
is little point in canvassing them”). While the Supreme Court
has resolved that the question is a legal one for the court to
decide based on state or local law, Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989), the Court has not settled on a
precise test for determining what type of authority under local
law makes an official a “final policymaker.” Its prior plurality
opinions have emphasized that to hold a municipality liable
for an official’s one-time action, the official must have final
policymaking authority in the particular area, and the
challenged action must have been taken pursuant to that
authority. See Praprotnik, 485 U.S. at 123 (plurality opinion);
Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986)
(plurality opinion).
In analyzing whether the official had policymaking
authority in the area at issue, a plurality of the Court has
identified two guiding inquiries. First, if the official’s
decisions were constrained by policies enacted by others, then
“those policies, rather than the subordinate’s departures from
them, are the act of the municipality.” Praprotnik, 485 U.S. at
127 (plurality opinion). And second, if the official’s decisions
were reviewable by the city’s “authorized policymakers,” then
the official is not the final policymaker. Id. A plurality in
Pembaur v. City of Cincinnati offered the following
hypothetical to explain that an official is not a “final
policymaker” merely because he has the authority to make
discretionary decisions:
[T]he County Sheriff may have discretion to hire and fire
employees without also being the county official
responsible for establishing county employment policy. If
this were the case, the Sheriff’s decisions respecting
employment would not give rise to municipal liability,
although similar decisions with respect to law
16
enforcement practices, over which the Sheriff is the
official policymaker, would give rise to municipal
liability. Instead, if county employment policy was set by
the Board of County Commissioners, only that body’s
decisions would provide a basis for county liability. This
would be true even if the Board left the Sheriff discretion
to hire and fire employees and the Sheriff exercised that
discretion in an unconstitutional manner; the decision to
act unlawfully would not be a decision of the Board.
However, if the Board delegated its power to establish
final employment policy to the Sheriff, the Sheriff’s
decisions would represent county policy and could give
rise to municipal liability.
475 U.S. at 483 n.12 (plurality opinion).
Here, the District contends that King was not a final
policymaker for the District’s personnel decisions. According
to the District, King possessed the same authority as the
hypothetical Sheriff—i.e., even though King, as the Executive
Director of the Lottery, had discretion to hire and fire
individual employees, the Lottery Board maintained final
authority over both King and his personnel decisions. In
support, the District points to a provision of the city code that
gave the Board authority to direct and supervise King’s
employment of others at the Lottery. See D.C. CODE
§ 3-1303(d)(3) (2001) (“The Executive Director shall, subject
to the direction and supervision of the Board . . . [e]mploy
other assistants and employees in accordance with the District
of Columbia Government Comprehensive Merit Personnel
Act of 1978.”); see also id. § 2-2503 (1981) (same). 4
4
It appears that the 1992 and 1998 supplements to the D.C.
Code, where cited in this section, contain the same language that
was in effect at the time of Thompson’s termination. However, we
were unable to locate an authoritative copy of the 1996 Supplement
17
According to the District, this provision cabined King’s
power to make personnel decisions by subjecting his
decisions to oversight from the Board. Further, the District
urges that the provision constrained King’s discretion by
requiring him to comply with the Comprehensive Merit
Personnel Act (CMPA), which required that a career civil
servant receive notice and a hearing before termination. The
District argues that it cannot be subject to liability for King’s
deviation from that official municipal policy, because, in the
Supreme Court’s terms, the official “polic[y], rather than the
subordinate’s departures from [it], [is] the act of the
municipality.” Praprotnik, 485 U.S. at 127 (plurality opinion).
If our analysis were constrained to a single provision in
the city code, the District’s argument would be more
persuasive than it is. Looking at this provision in tandem with
other parts of the code, we conclude there is significant reason
to believe that King was a final policymaker with regard to
the types of Lottery personnel decisions that led to
Thompson’s constructive termination. We have already
recognized that King had “absolute discretion ‘to identify
positions for abolishment’” for the purposes of the reduction
in force at the time of Thompson’s constructive termination.
See Thompson I, 428 F.3d at 287 (citing D.C. CODE
§ 1-625.5(a) (1996 Supp.)). The D.C. Code further provided
that King would “make a final determination that a position
within the [Lottery] is to be abolished.” D.C. CODE
§ 1-625.5(b) (1998 Supp.) (repealed) (emphasis added); see
also Budget Support Temporary Act of 1995, D.C. Law
11-78, tit. IV(b).
to the D.C. Code. On remand, the parties should provide and cite to
the law in effect in 1996, at the time of Thompson’s termination.
18
Moreover, the record is replete with evidence that King
exercised his authority over personnel matters without any
control by other District officials. See Praprotnik, 485 U.S. at
145 (Brennan, J., concurring in the judgment) (noting that
under section 1983, “the law is concerned not with the
niceties of legislative draftsmanship but with the realities of
municipal decisionmaking, and any assessment of a
municipality’s actual power structure is necessarily a . . .
practical one”); see also Jett, 491 U.S. at 737 (The court
determines who is a final policymaker by “[r]eviewing the
relevant legal materials, including state and local positive law,
as well as custom or usage having the force of law.” (citation
omitted)). King admitted, for example, that he alone drew up
the list of positions to be terminated, moved employees
around to avoid adverse repercussions from the reduction in
force, and decided on the number and types of employees
who should be eliminated. Indeed, King testified that no one
supervised his decisions about personnel actions, and no
evidence suggests otherwise. J.A. 90-92. Read together, the
D.C. Code and King’s testimony indicate that King’s
decisions were not in fact “review[ed]” by the “authorized
policymakers” that the District argues constrained King.
Praprotnik, 485 U.S. at 127 (plurality opinion); see also Ware
v. Jackson Cty., 150 F.3d 873, 882 (8th Cir. 1998) (“[T]he
existence of written policies of a defendant are of no moment
in the face of evidence that such policies are neither followed
nor enforced.”); cf. Daskalea v. District of Columbia, 227
F.3d 433, 442 (D.C. Cir. 2000) (holding a “‘paper’ policy
cannot insulate a municipality from liability where there is
evidence . . . that the municipality was deliberately indifferent
to the policy’s violation”).
Nor is it clear that other policies restricted King’s ability
to terminate Thompson, such that those policies, “rather than
the subordinate’s departures from them,” were the act of the
19
municipality. Praprotnik, 485 U.S. at 127 (plurality opinion).
As Executive Director of the Lottery, King was the designated
“personnel authority” for all Lottery employees except
himself and the Deputy Director. See D.C. CODE
§ 1-604.6(b)(14) (1992 Supp.). This meant that King was at
least empowered to implement “rules and regulations”
governing Lottery personnel matters. See id. § 1-604.6. In
fact, the code presumed that he would also issue rules,
regulations, and standards pursuant to this authority. Id.
§ 1-604.1 (“Further, it is the intent of the Council that the
rules, regulations, and standards issued by the personnel
authorities under this chapter should be as flexible and
responsive as possible and reflect an awareness of innovation
in the fields of modern personnel management and public
administration.” (emphasis added)). Moreover, the District
fails to point to evidence in the city’s laws that might indicate
that the Board ever exercised any of its authority to constrain
King’s policymaking by passing its own personnel policies to
“direct” him. See Vodak v. City of Chicago, 639 F.3d 738,
747-48 (7th Cir. 2011) (concluding that a subordinate was a
final policymaker despite a city council having authority that
it did not use to enact ordinances to constrain the
subordinate’s authority).
At the time of Thompson’s termination, King’s personnel
policies also seem to have been removed from the ordinary
rules of oversight that the District points to as evidence that
the Board maintained the ability to direct and supervise
King’s personnel decisions. See D.C. CODE § 1-625.5(g)
(1998 Supp.) (repealed). In fact, the District seems to have
expressly exempted King from the ordinary requirements of
the CMPA in making these decisions. See id. § 1-625.5(a)
(“Notwithstanding any other provision of law, regulation, or
collective bargaining agreement either in effect or to be
negotiated while this legislation is in effect for the fiscal year
20
ending September 30, 1996, each agency head is authorized,
within the agency head’s discretion, to identify positions for
abolishment.”); see also id. § 1-625.5(c) (“Notwithstanding
any rights or procedures established by any other provision of
this subchapter, any District government employee . . . who
encumbers a position identified for abolishment shall be
separated without competition or assignment rights, except as
provided in this section.”). The Council may thus have
delegated final policymaking authority to King over Lottery
personnel matters at the time of Thompson’s termination,
even if other municipal bodies also had policymaking
authority.
Contrary to the District’s argument, our decision in
Singletary v. District of Columbia, 766 F.3d 66 (D.C. Cir.
2014), does not prevent this conclusion. In Singletary, we
determined that the District could not be held liable under
Monell for the Board of Parole’s decision to revoke
Singletary’s parole because the Board was not a final
policymaker when it came to parole revocation. Id. at 73-74.
The Mayor had final rulemaking authority for parole
revocations, which he had delegated to the Board’s
Chairperson, who had played no role in the decision to revoke
Singletary’s parole. Id. Even though the Board had final
authority over the decision, it lacked the requisite
policymaking authority under District law. Id. at 74. But here,
District law gives us reason to believe that King might have
held such final policymaking authority with regard to Lottery
personnel matters. Accordingly, Singletary does not foreclose
the conclusion that King may have set the municipal policy
that was used in Thompson’s termination.
Because neither party has fully briefed the impact of
these provisions on the Monell analysis, however, we remand
this issue to the district court for it to consider in the first
21
instance. On remand, Thompson may also present his
alternative arguments for the District’s liability under
Monell—e.g., that the District had developed a “policy or
practice” of unconstitutional terminations at the Lottery.
V
Finally, we address Thompson’s request that we reassign
the case on remand. Although we are concerned with the
district court’s treatment of this case on the last remand,
particularly the decision to sua sponte dismiss the case, the
court’s actions have not triggered the need for reassignment.
See United States v. Wolff, 127 F.3d 84, 88 (D.C. Cir. 1997)
(establishing that impartiality, the appearance of justice, and
the possibility of waste and duplication are the three factors
considered for reassignment). We are confident that the
district court will act expeditiously on remand in this case.
VI
The district court’s order granting summary judgment to
the District of Columbia is reversed, the district court’s denial
of Thompson’s summary judgment motion is reversed in part,
and the case is remanded to the district court for further
proceedings consistent with this opinion.