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Thompson v. District of Columbia

United States Court of Appeals, District of Columbia Circuit

August 12, 2016

James A. Thompson, Jr., Appellant
v.
District of Columbia, et al., Appellees

          Argued November 18, 2015

         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.

          OPINION

          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, 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 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 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 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 ...


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