United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 6, 2020 Decided July 31, 2020

No. 18-7151

MICHELLE THOMPSON, PERSONAL REPRESENTATIVE OF THE 

ESTATE OF JAMES ALLEN 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 and filed the briefs for 

appellant.

Mary L. Wilson, Senior Assistant Attorney General, Office 

of the Attorney General for the District of Columbia, argued 

the cause for appellees. With her on the brief were Karl A. 

Racine, Attorney General, Loren L. AliKhan, Solicitor General, 

and Caroline S. Van Zile, Deputy Solicitor General.

Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.
2

MILLETT, Circuit Judge: In 1996, Frederick King, 

Executive Director of the District of Columbia Lottery and 

Charitable Games Control Board (“Lottery Board”), took a 

series of personnel actions designed to push his employee, 

James A. Thompson, Jr., out of his job without due process. In 

1997, Thompson filed this suit against the District of Columbia

under 42 U.S.C. § 1983, seeking compensation for King’s 

violation of his Fifth Amendment rights.

We hold that the district court erred in denying 

Thompson’s motion for summary judgment and granting 

summary judgment against Thompson on the ground that the 

District was not itself liable for King’s constitutional tort. King 

was acting as a final policymaker on behalf of the District when 

he took the series of personnel actions that led to Thompson’s 

constructive termination without due process. As such, the 

District is liable for King’s wrongdoing. We remand for the 

district court to enter summary judgment against the District on 

the liability issue and, at long last, to determine the appropriate 

amount of damages.

I

A

James A. Thompson, Jr., was hired by the Lottery Board 

as an auditor in 1985. He came aboard as an experienced 

auditor and security systems expert, having previously served 

as the Chief of the Financial Division of the Metropolitan 

Police Department for several years. In 1996, after a series of

promotions, Thompson was named the Lottery Board’s 

Security Systems Administrator. That meant that he was

tasked with reviewing and ensuring the integrity of the Lottery 

Board’s operations. 
3

Thompson’s relationship with his superiors quickly began 

to sour “when several audits he supervised unearthed what he 

thought was unethical, if not illegal, behavior” at the Lottery 

Board. Thompson v. District of Columbia (Thompson III), 832 

F.3d 339, 341 (D.C. Cir. 2016).

For example, in a February 1996 audit, Thompson

discovered that the Lottery Board had purchased computer 

equipment for almost $7 million from a subcontractor, only to 

place the equipment on a depreciation schedule that labeled it 

worthless just five years later. Then, as part of a new purchase 

agreement, Lottery Board officials gave the rather expensive 

computer equipment back to the same subcontractor—at no 

cost to the subcontractor—despite the fact that “the equipment 

likely had at least some monetary value due to recent 

upgrades.” Thompson III, 832 F.3d at 342. Thompson 

described the business arrangement as “unethical at the best[,]” 

and perhaps “a misappropriation of government assets, at 

worst.” Id. He added that his concerns comported with news 

reports of other acts of misappropriation and fraudulent 

procurement activities at the Lottery Board. Id.1

Throughout the summer of 1996, Thompson repeatedly 

raised his concerns about the Lottery Board’s questionable 

practices with his supervisor, Frederick King, the Lottery 

Board’s Executive Director. But King refused to investigate. 

1 A later external investigation by the District’s Financial 

Responsibility and Management Assistance Authority confirmed 

that “the contracting practices of the Lottery [Board] raised serious 

questions of propriety and conflict of interest.” Thompson III, 832 

F.3d at 342 n.1 (formatting modified). The Lottery Board was 

subsequently forced to revise one of its “major contracts.” Id.

(internal quotation marks omitted).
4

Instead, King took a series of adverse personnel actions that, in 

short order, left Thompson without his job.

First, on August 22, 1996, King used temporary authority 

granted to him amidst a District budget crisis to designate a 

vacant Security Officer position for elimination. Specifically, 

King turned to the Budget Support Temporary Act of 1995, 

which created a reduction-in-force protocol that, as relevant 

here, empowered “each agency head * * * to identify positions 

for abolishment,” D.C. CODE § 1-625.5(a) (Supp. 1998), and 

then granted “each personnel authority” the power to “make a 

final determination that a position within the personnel 

authority is to be abolished,” id. § 1-625.5(b).2 As the 

Executive Director of the Lottery Board, King was both the

“agency head” and the “personnel authority” for all Lottery 

Board employees (other than himself, obviously, and the 

Deputy Director of the Board). Id. § 1-603.01(11) (defining 

“agency head” as the highest ranking executive official of an 

agency”); id. § 1-604.6(b)(14) (naming the Executive Director 

as the Lottery Board’s personnel authority).

Second, on the next day, August 23rd, King transferred 

Thompson from his Security Systems Administrator position 

“to the doomed [Security Officer] position.” Thompson III, 

832 F.3d at 342. Thompson was given neither notice of the 

transfer nor an opportunity to challenge it. Id. And the 

personnel form that King signed in making the reassignment 

said “only that the action fixed ‘a classification error.’” Id.

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.” Thompson III, 832 F.3d at 342 n.2 (quoting Davis v. 

University of D.C., 603 A.2d 849, 852 n.8 (D.C. 1992)).
5

Third, four days later (August 27th), King informed 

Thompson that his new position had been eliminated in the

reduction in force. Thompson III, 832 F.3d at 342. King 

handed 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.” Id. As our court has stressed, “the form made no 

mention of Thompson’s prior reassignment to the position that 

had been marked for elimination[,]” and so “did not inform 

Thompson of any right he might have had to challenge that

employment action.” Id.

Later that same day, King placed Thompson on paid leave 

for the next several weeks. Thirty days later, Thompson’s new 

position was formally terminated as part of the reduction in 

force. See D.C. CODE § 1-625.5(f) (Supp. 1998). On 

September 30, 1996, Thompson briefly returned to work in a 

temporary position. But that position expired in January 1997, 

again leaving Thompson without a job at the Lottery Board—

this time for good.

Shortly thereafter, the Lottery Board hired a new security 

manager. Thompson III, 832 F.3d at 342.

B

In May 1997, Thompson filed this suit under 42 U.S.C. 

§ 1983, alleging, as relevant here, that the District of Columbia 

denied him his Fifth Amendment right to due process prior to 

his termination from the Lottery Board.

Seven years later, the district court granted the District’s 

motion for judgment on the pleadings, ruling that the 

allegations in the amended complaint showed that Thompson 

had received due process through the District’s grievance 
6

procedures. Thompson v. District of Columbia, No. 1:97-

01015-TPJ, 2004 WL 5348862, at *4 (D.D.C. June 23, 2004).

We reversed. Thompson v. District of Columbia

(Thompson I), 428 F.3d 283 (D.C. Cir. 2005). We held that 

Thompson had stated a legally viable claim under the Fifth 

Amendment’s Due Process Clause by alleging that King 

intentionally transferred him without notice or a pre-transfer

hearing to a position that he knew would be eliminated 

imminently in the reduction in force. Id. at 288.

Two years later, the district court again dismissed 

Thompson’s case. Thompson v. District of Columbia, 478 

F. Supp. 2d 5 (D.D.C. 2007). With respect to Thompson’s due 

process claim, the district court ruled that Thompson had no 

protected property interest in his job at the time of his 

termination because District of Columbia law had converted all 

Lottery Board personnel to at-will employees in September 

1996. Id. at 9–10.

We reversed. Thompson v. District of Columbia

(Thompson II), 530 F.3d 914 (D.C. Cir. 2008). To start, there 

was no dispute that Thompson was not an at-will employee 

throughout most of his time at the Lottery Board because the 

District of Columbia’s Comprehensive Merit Personnel Act 

(“CMPA”) provided he could be “removed from the Service 

only for cause and only in accordance” with the provisions of 

the CMPA. Id. at 918 (quoting D.C. CODE § 1-617.1(b)

(1981)) (emphasis omitted); see also id. (explaining that 

Thompson had a property interest in his job 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”) (internal 

quotation marks omitted). We then held that it was irrelevant 

whether District of Columbia law changed Thompson’s status

to at-will in September 1996 because he was “constructively 
7

removed from the Service at the time of [his] transfer” in 

August 1996. Id. at 919. Because “Thompson was a Career 

Service employee” removable only for cause at the time King

“transferred him to a doomed position in order to get rid of 

him,” Thompson had been deprived of his property interest in 

his job. Id. at 920.

Six and a half years later, the district court sua sponte

dismissed Thompson’s action, this time in a minute order. See 

Thompson III, 832 F.3d at 343–344. The district court later 

filed a written order concluding that “there are no legally 

available damages for” Thompson’s due process claim. 

Thompson v. District of Columbia, No. 1:97-cv-01015-RJL, 

2015 WL 13673454, at *1 (D.D.C. Feb. 18, 2015). The court 

reasoned 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, 

and that Thompson had made no such showing.

We reversed. Thompson III, 832 F.3d at 341. We treated 

the district court’s dismissal as a sua sponte entry of summary 

judgment because it went beyond the pleadings.

Before addressing the legal question whether damages 

were available, we rejected two attempts by the District to 

relitigate whether Thompson’s due process rights were 

violated.

First, the District asked us to “revisit our conclusion in 

Thompson II that Thompson was deprived of his property 

interest at the time of his assignment to the [doomed] Security 

Officer position.” Thompson III, 832 F.3d at 344. The District

argued that “a reasonable juror could question whether the 

Lottery’s employment action was a ‘transfer’ and instead 

conclude” that it was merely a reclassification that did not 

“trigger[] any process” under the CMPA. Id. at 344–345; see
8

CMPA, D.C. CODE § 1-617.1(b) (Replacement 1992) 

(applying process protections to Career Service Employees 

when they are “suspended for more than 30 days, reduced in 

rank or pay, or removed from the Service”); id. § 1-606.4(b) 

(requiring District of Columbia agencies to give written notice 

“prior to the taking of any action which adversely affects an 

employee”); see also Thompson III Oral Arg. Rec. 41:46–

42:00 (District arguing that Thompson was merely 

“reclassified” and not meaningfully transferred because his job 

duties and description did not change); id. at 48:33–50 (District 

arguing that Thompson’s “job title was clarified,” and that he 

was not “terminat[ed]” at the time of the transfer). That 

argument, we held, rested “on a distinction without a 

difference.” Thompson III, 832 F.3d at 345. Whether called a 

transfer or a reclassification, King’s collective actions 

amounted, as a matter of law, to a constructive termination 

“because the Security Officer position had already been slated 

for elimination” at the time of the transfer. Id.

Second, we rejected the District’s alternative argument 

“that Thompson received all of the process that he was due” 

because he was given a “right to challenge the elimination of 

his new position in the reduction in force.” Thompson III, 832 

F.3d at 345. The hearing that 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”—the transfer into the ill-fated

position—“because Thompson was never notified that he could 

challenge that action.” Id. at 345–346 (emphasis added). 

Thompson had “a right to notice of [the] transfer and a hearing 

to challenge his transfer before it was made.” Id. at 345. He 

was denied that process. Id.

On the question of damages, we agreed with the district 

court that Thompson could not recover compensatory damages 
9

arising from his termination if it would have occurred even had 

he been given due process. Thompson III, 832 F.3d at 346. But 

we disagreed that it was Thompson’s burden to prove this

counterfactual point. Id. Rather, we held that, “[o]nce 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.” Id.

(citing Brewer v. Chauvin, 938 F.2d 860, 864–865 (8th Cir. 

1991) (en banc)). Yet the District had failed as a matter of law 

to carry that burden. Id. at 347. So we instructed the district 

court on remand to enter partial summary judgment for 

Thompson as to the violation of his due process rights. Id.

We noted that only two issues remained for the district 

court to address on this third remand: (i) whether the District 

itself could be held liable for King’s constitutional violation; 

and, if so, (ii) what damages it owed Thompson for the 

wrongdoing. Thompson III, 832 F.3d at 341.

The liability issue, we noted, hinged on Monell v. 

Department of Social Services, 436 U.S. 658 (1978), which 

ruled that a municipality is liable under 42 U.S.C. § 1983 only 

for constitutional violations caused by its policies or customs. 

Thompson III, 832 F.3d at 347. Monell established that “a 

municipality cannot be held liable solely because it employs a 

tortfeasor”—that is, “on a respondeat superior theory.” Id.

(quoting Monell, 436 U.S. at 691). Rather, the injury must “be 

inflicted by municipal ‘lawmakers or by those whose edicts or 

acts may fairly be said to represent official policy.’” Id.

(quoting Monell, 436 U.S. at 694). We emphasized that a 

“single action can represent municipal policy where the acting

official has final policymaking authority over the ‘particular 

area, or * * * particular issue.’” Id. at 347–348 (quoting 

McMillian v. Monroe County, 520 U.S. 781, 785 (1997))
10

(citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) 

(plurality opinion)); see also Jett v. Dallas Indep. School Dist., 

491 U.S. 701, 737 (1989) (Monell liability attaches where the 

offending official has “final policymaking authority for [the 

municipality] concerning the action alleged to have caused the 

particular constitutional or statutory violation at issue.”).

With that framework in mind, we ruled that the District

was liable under Monell 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.” 

Thompson III, 832 F.3d at 348.

We then “conclude[d] there [was] 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.” Thompson III, 832 F.3d at 349. 

An official assuredly acts as a final policymaker, we noted, 

if his or her decisions are unconstrained by policies enacted by 

others and are unreviewable by other policymakers of the 

municipality. See Thompson III, 832 F.3d at 348. Here, we 

added, the reduction-in-force statute gave King “absolute 

discretion to identify positions for abolishment * * * at the time 

of Thompson’s constructive termination[,]” notwithstanding 

any other provision of law. Id. at 349 (formatting modified). 

The law also cemented as “final” King’s determination that a 

Lottery Board position be terminated. Id. (quoting D.C. CODE

§ 1-625.5(b) (Supp. 1998)). That meant that the law “expressly 

exempted King from the ordinary requirements of the CMPA 

in making [those] decisions,” including the requirement to 

provide due process. See id. at 350.

In addition, we observed, the record was “replete with 

evidence that King” in practice “exercised his authority over 

personnel matters without any control by other District 
11

officials.” Thompson III, 832 F.3d at 349. King himself

“testified that no one supervised his decisions about personnel 

actions,” and he admitted “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.” Id. All that was critical, we explained, because

“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[.]” Id.

(quoting Praprotnik, 485 U.S. at 145 (Brennan, J., concurring 

in the judgment)); see also id. at 350 (“[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.”)

(quoting Ware v. Jackson County, 150 F.3d 873, 882 (8th Cir. 

1998)).

“Read together,” we stressed, “the D.C. Code and King’s 

testimony indicate that King’s [personnel] decisions” that

resulted in Thompson’s constructive termination without due 

process “were not in fact reviewed” by anyone. Thompson III, 

832 F.3d at 350. But because neither party had fully briefed 

the Monell issue, we remanded so the district court could

resolve it in the first instance. Id. at 351.

C

On remand, Thompson moved for summary judgment 

regarding the District of Columbia’s liability under Monell. In

December 2017, following a failed attempt at mediation, the 

district court denied Thompson’s fully briefed summary 

judgment motion in a minute order.

Thompson then filed a motion seeking reassignment of his 

case to a judge whose docket did not foreclose a prompt trial 
12

date. The district court promptly scheduled a status 

conference. Thompson then filed a motion asking the district 

court to explain why it denied his summary judgment motion.

On February 1, 2018, the district court denied in a minute 

order Thompson’s motion for a statement of reasons regarding 

its denial of his summary judgment motion. In the minute 

order, “[p]ursuant to the agreement of the parties at the 1/29/18 

conference,” the district court also set a briefing schedule for 

the District to file a summary judgment motion of its own on 

the issue of Monell liability. Minute Order, Thompson, 

No. 1:97-cv-01015-RJL (D.D.C. Feb. 1, 2018).

The District of Columbia subsequently filed a motion for 

summary judgment, which the district court granted, holding 

that the District was not liable under Monell for King’s actions. 

Thompson v. District of Columbia, No. 1:97-01015-RJL, 2018

WL 4705787 (D.D.C. Sept. 30, 2018). The court concluded 

that neither District policy nor custom was the moving force 

behind the violation of Thompson’s right to due process. King, 

and only King, was responsible for his actions.

In so ruling, the court rejected Thompson’s three 

independent theories of Monell liability.

First, the district court ruled that King was not acting as a 

final policymaker for the District when he reassigned

Thompson to the Security Officer position on the eve of its 

elimination. The court considered it irrelevant whether King 

was a final policymaker when he “took the separate and distinct 

employment action of including the position (and Thompson) 

in the [reduction in force]—a decision regarding which 

Thompson did receive notice and an opportunity to challenge.” 

Thompson, 2018 WL 4705787, at *5.
13

The district court then concluded that, while the reductionin-force statute vested King with unencumbered authority to 

identify positions for termination, the statute did not grant him 

the same unencumbered authority to transfer Thompson into a 

different position without first providing him due process. For 

that reason, the district court concluded that King was not a 

final policymaker unbounded by the “constraints and 

requirements imposed by other personnel laws.” Thompson, 

2018 WL 4705787, at *5. Specifically, the D.C. Code

mandated that King exercise his personnel authority “in 

accordance with the [CMPA],” the law under which Thompson 

argued that he was denied due process regarding the transfer. 

Id. (quoting D.C. CODE § 2-2503 (1981)). “[T]he CMPA 

should have afforded [Thompson] [procedural] protections,”

the district court reasoned, because his “reassignment 

amounted to a constructive removal[.]” Id. at *6; see also

CMPA, D.C. CODE § 1-606.4(b) (Replacement 1992) 

(mandating written notice “prior to the taking of any action 

which adversely affects an employee”). So, the district court 

concluded, the CMPA—not King’s departure from it—

represented the District’s settled policy. The district court 

added that the D.C. Code also left King’s general power to 

“[e]mploy other assistants and employees” “subject to the 

direction and supervision of the [Lottery] Board.” Id. at *7

(quoting D.C. CODE § 2-2503 (1981)). So any authority King

had over transfers was non-final too.

Second, in a footnote, the district court rejected 

Thompson’s alternative liability argument that the District

ratified King’s unlawful action by affirmatively approving both 

King’s decision and the basis for it. According to the district 

court, Thompson failed to identify any evidence in the record 

supporting that contention.
14

Third, the district court rejected Thompson’s argument 

that “King acted pursuant to a ‘custom’ that, while not 

‘formally approved by an appropriate decisionmaker,’ subjects 

the District ‘to liability on the theory that the relevant practice 

is so widespread as to have the force of law.’” Thompson, 2018 

WL 4705787, at *8 (quoting Board of County Comm’rs of 

Bryan County v. Brown, 520 U.S. 397, 404 (1997)). According 

to Thompson, the District had a settled “municipal custom of 

retaliating” against employees, and that custom was the 

moving force behind his unconstitutional termination. Id. But 

the court held that Thompson failed to identify “specific facts 

showing a genuine triable issue as to whether the District had a 

widespread and pervasive custom or practice of denying 

procedural due process” to its employees. Id.

Thompson died while this latest round in his action was 

pending. We substituted his daughter, Michelle Thompson, as 

the plaintiff in the case in her capacity as personal 

representative of her father’s estate. Michelle Thompson 

appeals the district court’s denial of plaintiff’s motion for 

summary judgment and its entry of summary judgment in favor 

of the District.

II

The district court had jurisdiction under 28 U.S.C. § 1331. 

Our jurisdiction arises under 28 U.S.C. § 1291.

We review de novo a district court’s grant or denial of 

summary judgment. Defenders of Wildlife v. Zinke, 849 F.3d 

1077, 1082 (D.C. Cir. 2017). “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.” 

Thompson III, 832 F.3d at 344. Summary judgment is 

appropriate only “if the movant shows that there is no genuine 
15

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).

Whether a particular official has final policymaking 

authority for purposes of Monell liability is a question of state 

law, and “the identification of those officials whose decisions 

represent the official policy of the local governmental unit is 

itself a legal question to be resolved by [the court].” Jett, 491 

U.S. at 737.

III

A

Michelle Thompson primarily argues that the district court 

erred in holding that Monell insulated the District from liability

for the personnel actions that King took to effect Thompson’s 

termination. Although she advances three alternative theories

of District liability, we need only consider her first theory

because it suffices to establish the District’s responsibility for 

King’s actions.

Specifically, even taking the facts in the light most 

favorable to the government, the record in this case shows that 

King was acting as a final policymaker on behalf of the District 

when he made “the types of Lottery personnel decisions that 

led to Thompson’s constructive termination” without notice or 

a pre-termination hearing. Thompson III, 832 F.3d at 349. The 

District empowered King to make the final policy judgments 

for developing and carrying out the reduction in force at the 

Lottery Board, and he used that authority to take the personnel 

measures that constructively terminated Thompson without 
16

due process. His relevant personnel decisions were

(i) unconstrained “by policies enacted by others,” and 

(ii) unreviewable by any other authorized policymaker. See id.

at 348. So the District is liable for them under Monell.

Recall that King took three personnel actions that resulted, 

as a matter of law, in Thompson’s constructive termination

without notice or a pre-termination hearing.

First, he designated a vacant Security Officer position for 

elimination. Second, he transferred Thompson into that 

condemned position, with no notice or pre-termination 

opportunity to challenge the transfer, let alone warning that the 

position was on the verge of elimination. Third, King promptly 

eliminated Thompson’s new position. The parties agree that it 

was “the totality” of these actions that resulted in Thompson’s 

constructive termination. District Br. 22; Thompson Br. 11.

The District does not dispute that King was acting as a 

final policymaker, within the meaning of Monell, when he took 

the first and third of those actions. See Oral Arg. Tr. 26:16–

27:20. For good reason. King’s designation of the Security 

Officer position for elimination, and his subsequent 

elimination of that position, were both undertaken as part of 

King’s administration of the reduction in force. And the 

reduction-in-force statute specifically empowered King, 

“[n]otwithstanding any other provision of law,” to “make a 

final determination that a position * * * be abolished.” D.C.

CODE § 1-625.5(a)–(b) (Supp. 1998) (emphasis added). The 

statute also left any individual in such a fated position without 

a job, “[n]otwithstanding any rights or procedures established 

by any other provision of” the CMPA. Id. § 1-625.5(c). As the 

District put it, the statute gave King “absolute discretion” in 

carrying out the reduction in force. Oral Arg. Tr. 26:8–12. 
17

That is the stuff of which final policymakers are made. See 

Thompson III, 832 F.3d at 348.

The District likewise agrees that the CMPA did not in any 

way constrain King’s ability generally to transfer or reclassify 

employees without pre-transfer notice or a hearing, as long as 

the transfer did not amount to a demotion or a constructive 

termination. See Oral Arg. Tr. 28:17–29:2. Nor has the 

District denied that, in implementing the reduction in force, 

King transferred or reclassified employees into different 

positions solely to alter the reduction-in-force consequences

that they otherwise would face. See Oral Arg. Tr. 37:3–15 (Q: 

“And you haven’t disputed for the district court or this Court 

that [King] was [moving employees to insulate them from the 

reduction in force], have you?” A: “I don’t think we’ve 

disputed that.”). King, in fact, admitted that he “moved 

employees around to avoid adverse repercussions from the 

reduction in force,” and “that no one supervised his decisions 

about personnel actions[.]” Thompson III, 832 F.3d at 349.

Against that backdrop, the District’s central contention is 

that King lacked the policymaking authority to constructively 

terminate Thompson because his transfer of Thompson into a

position slated for elimination violated the CMPA. In other 

words, the District does not dispute that King was 

unconstrained by the CMPA for each of the three independent 

steps that added up to Thompson’s constructive removal. But, 

the District argues, because this court later concluded that the 

cumulative impact of those measures amounted, as a matter of 

law, to a constructive termination requiring pre-transfer 

process under the CMPA, King violated the District’s 

“established policy” (by virtue of the CMPA) that pre-transfer 

process was required. District Br. 12, 25. 

That argument fails at multiple levels.
18

For starters, the issue for Monell purposes is not whether 

King had the policymaking authority to constructively 

terminate Thompson by way of the transfer. “Constructive 

termination” is a legal label that we ascribed twelve years after 

the fact to the series of personnel decisions King made that 

ousted Thompson from his job. See Thompson II, 530 F.3d at 

919 (“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 [reduction in force], the employee is 

constructively removed from the Service at the time of the 

transfer.”); see also Simpson v. Federal Mine Safety & Health 

Review Comm’n, 842 F.2d 453, 461–462 (D.C. Cir. 1988)

(explaining the “[c]onstructive discharge doctrine”). 

Instead, as we explained in Thompson III, the question of 

Monell liability in this case turns on whether “King was a final 

policymaker with regard to the types of Lottery personnel 

decisions that led to Thompson’s constructive termination.” 

Thompson III, 832 F.3d at 349 (formatting modified); see also 

id. at 350 (“In fact, the District seems to have expressly 

exempted King from the ordinary requirements of the CMPA 

in making these decisions.”) (emphasis added).

The proof is all over our prior opinion. We spilled a great 

deal of ink in Thompson III on King’s authority under the 

reduction-in-force statute as it relates to Monell liability. See, 

e.g., 832 F.3d at 350 (“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.”) 

(citing reduction-in-force statute, D.C. CODE § 1-625.5(g) 

(Supp. 1998)); id. (“In fact, the District seems to have expressly 

exempted King from the ordinary requirements of the CMPA 

in making these decisions.”) (citing reduction-in-force statute,
19

D.C. CODE § 1-625.5(a), (c) (Supp. 1998)); id. at 349 (“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. The D.C. Code further provided that King would 

make a final determination that a position within the [Lottery

Board] is to be abolished.”) (formatting modified). 

As we also explained, the Monell analysis focuses on each

of King’s three personnel decisions for good reason: King’s 

selection and elimination of the Security Officer position in the 

reduction in force were constituent elements of the constructive 

termination of Thompson without due process. The three steps 

were not unrelated happenstance; they were choreographed by 

King to work in tandem. Like Casey at the Bat, it took all three 

strikes to get Thompson out.

The effort to separate the transfer from the selection and 

elimination of the Security Officer position—and then ask this 

court to ignore King’s authority over everything but the 

transfer—is also illogical on this record. That is because 

King’s exercise of his authority to implement the reduction in

force undisputedly included “mov[ing] employees around” to 

manipulate the effects of the force reduction on individuals. 

Thompson III, 832 F.3d at 349. As King himself admitted, no 

one supervised those transfer decisions. See id.

In any event, even were we to look only at King’s transfer 

authority, that would not change anything. Critical to the 

District’s argument on the transfer front is that it had an 

“established policy” requiring King to provide pre-transfer 

process under the CMPA if the transfer amounted to a 

constructive termination. See District Br. 12, 25. But saying it 

does not make it so.
20

First, recall that for twenty years after Thompson’s fateful 

transfer—continuing through his last appeal—the District

argued exactly the opposite. It contended that, under District 

law, the transfer was a mere administrative reclassification that 

did not require any pre-transfer process under the CMPA. 

Which left the reclassifying transfer fully within King’s 

unilateral authority. Thompson III, 832 F.3d at 344–345; 

Thompson III Oral Arg. Rec. 41:46–42:01 (arguing that 

Thompson was merely “reclassified” and not meaningfully 

transferred because his job duties and description did not 

change); id. at 48:33–50 (arguing that Thompson’s “job title 

was clarified,” and that he was not “terminat[ed]” by the 

transfer). While parties are, of course, free to change their 

arguments as cases proceed, they cannot change legal reality 

after the fact.

Second, the District does not point to anything 

corroborating its current contention that it had an established 

policy in 1996 of providing pre-transfer process under the 

CMPA for this sort of mid-reduction-in-force transfer. It has 

not cited a single example of an employee receiving pretransfer process in an analogous circumstance. Instead, the 

District points to Levitt v. District of Columbia Office of 

Employee Appeals, 869 A.2d 364 (D.C. 2005). District Br. 30 

n.13; Oral Arg. Tr. 37:17–38:21. But Levitt did not hold that 

the CMPA required any such pre-transfer process. It held only 

that an employee challenging his termination in a reduction in 

force, who was transferred several times before his final 

position was eliminated, raised non-frivolous arguments 

concerning “the unusual personnel actions the employing 

agency took before abolishing his position” that warranted 

further examination after the fact. See Levitt, 869 A.2d at 366–

367 (emphasis omitted). The case says nothing about pretransfer process under the CMPA or otherwise. Nor does it 
21

evidence an established policy of the kind described by the 

District now.

The District’s failure to back up its contention that it had 

an “established policy” in 1996 of mandating pre-transfer 

notice under the CMPA if the transfer resulted in a constructive 

termination closes the door on its argument that King was 

simply a rogue tortfeasor. See Thompson III, 832 F.3d at 350 

(“[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.”) (quoting Ware, 150 F.3d at 882); id.

(noting a mere “paper policy cannot insulate a municipality 

from liability where there is evidence * * * that the 

municipality was deliberately indifferent to the policy’s 

violation”) (quoting Daskalea v. District of Columbia, 227 

F.3d 433, 442 (D.C. Cir. 2000)).

Alternatively, the District argues that the Lottery Board’s 

Human Resources Division—not King—was responsible for 

providing Thompson with pre-transfer notice and an 

opportunity to be heard. District Br. 21–22 (“King could not 

make a policy decision binding on the District to deprive 

Thompson of process that King did not have the responsibility 

to provide in the first place.”). But that argument ignores the 

fact that King manipulated the personnel forms by stating that 

the transfer merely fixed a classification error. See id. That 

was not Human Resources’ doing.

Besides, to provide pre-transfer process, Human 

Resources would have to have been informed in advance by 

King that, although the transfer looked like a series of 

authorized reduction-in-force personnel decisions, it really was 

a plan to accomplish a constructive termination. There is no 

evidence that King told anyone in Human Resources what he 

was up to.
22

Finally, the District argues that, apart from the CMPA, the 

D.C. Code also made King’s transfer decisions “subject to the 

direction and supervision of the [Lottery] Board.” District 

Br. 31 (internal quotation marks omitted); D.C. CODE

§ 2-2503(d) (Replacement 1994). As the District would have 

it, the Lottery Board’s supervisory power over King made the 

Board, not King, the final policymaker when it came to 

constructive terminations during the reduction in force.

That argument seeks to fight lost battles. We have already 

held that the Monell analysis requires us to look at the full 

panoply of personnel decisions that King made to 

constructively terminate Thompson without due process during 

the reduction in force. See Thompson III, 832 F.3d at 349–350. 

As to those decisions—the very decisions at issue in this case—

the D.C. Code empowered King to make final and 

unreviewable decisions about which positions would be 

abolished. See D.C. CODE § 1-625.5(a)–(b) (Supp. 1998)

(vesting in King, as “personnel authority,” the power to 

“identify positions for abolishment” and “make a final 

determination that a position * * * be abolished”). The Lottery 

Board had no role to play. King “alone” moved employees 

around to manipulate the consequences of those decisions, with 

“no one supervis[ing] [those] personnel actions[.]” 

Thompson III, 832 F.3d at 349. The District’s argument 

depends entirely on divorcing Thompson’s transfer from its 

accompanying reduction-in-force personnel decisions and 

from the realities of municipal decisionmaking. Monell does 

not require us to blink away reality. See id. (Monell analysis 

“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.”).
23

Because the record in this case demonstrates that King had 

the sole and unreviewable authority to make the series of 

personnel decisions, including the transfer, that together 

amounted to Thompson’s constructive termination without due 

process, he was a final policymaker for the District within the 

meaning of Monell. For that reason, the district court is 

directed to enter summary judgment in favor of Michelle

Thompson on the question of Monell liability.3

B

In addition to seeking reversal of the district court’s 

summary judgment ruling, Michelle Thompson requests that 

we reassign this case on remand to a different judge.

We declined this same request in our last decision. 

Thompson III, 832 F.3d at 351 (noting that “impartiality, the 

appearance of justice, and the possibility of waste and 

duplication are the three factors” governing reassignment 

requests) (citing United States v. Wolff, 127 F.3d 84, 88 (D.C. 

Cir. 1997)). Reassignment is “unusual” relief for the court to 

provide. Wolff, 127 F.3d at 88. The district court’s handling 

of the case did not warrant it before. See Thompson III, 832 

F.3d at 351. Nor does it now. The district court acted in a 

timely manner to address the Monell issue and its ultimate 

summary judgment decision was explained to the parties and 

3 Michelle Thompson separately argues that the district court 

committed reversible error in denying Thompson’s motion for a 

statement of reasons regarding its minute-order denial of his motion 

for summary judgment on the issue of Monell liability. But the 

district court did eventually explain itself in a memorandum opinion

when it granted summary judgment to the District. Anyhow, our 

decision on Monell liability obviates any need to address that 

procedural objection.
24

was thoughtful in its reasoning. This court’s disagreement on 

the law says nothing about the district court’s responsible 

execution of its duties.

That said, we are not unsympathetic to Michelle

Thompson’s concerns and frustration with how long this case 

has taken to resolve. Her father filed this suit twenty-three

years ago. He unfortunately has not survived to see its 

resolution. Yet we remain confident that, as with the last 

remand, the district court will act expeditiously. Thompson III, 

832 F.3d at 351. After all, only one issue remains to be 

resolved—a calculation of the damages owed by the District 

for King’s violation of Thompson’s due process rights. See id.

at 341.

IV

For all of those reasons, the district court erred in granting 

summary judgment for the District of Columbia and in denying 

summary judgment for James and Michelle Thompson on the 

question of Monell liability. As a matter of law, King acted as 

a final policymaker when he took the series of personnel 

actions that resulted in Thompson’s constructive termination 

without due process. That means that the District of Columbia 

is responsible for the wrong. We direct the district court to 

enter summary judgment for Michelle Thompson on the 

question of Monell liability, and we remand for further 

proceedings to determine the amount of damages owed, 

consistent with this opinion.

So ordered.