United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2008 Decided June 27, 2008 

No. 07-7067 

JAMES A. THOMPSON, JR., 

APPELLANT

v. 

DISTRICT OF COLUMBIA, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 97cv01015) 

S. Micah Salb argued the cause and filed the briefs for 

appellant. 

William J. Earl, Senior Assistant Attorney General, 

Office of the Attorney General for the District of Columbia, 

argued the cause for appellee. With him on the brief were 

Peter J. Nickles, Interim Attorney General, Todd S. Kim, 

Solicitor General, and Donna M. Murasky, Deputy Solicitor 

General. 
2 

Before: GINSBURG, BROWN and KAVANAUGH, Circuit 

Judges. 

 

Opinion for the Court filed by Circuit Judge BROWN. 

BROWN, Circuit Judge: James A. Thompson, Jr., appeals 

the dismissal of his claims that the District of Columbia 

retaliated against him for exercising his First Amendment 

rights and fired him without affording him due process. We 

affirm the district court’s conclusion that the First 

Amendment did not protect Thompson’s speech, but reverse 

its holding that Thompson had no right to due process. 

I 

Because the district court granted the District of 

Columbia’s motion for judgment on the pleadings, we review 

its decision de novo, accepting as true all the allegations in 

Thompson’s complaint. See Peters v. Nat’l R.R. Passenger 

Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992). 

Thompson, while employed as Chief of Security for the 

District of Columbia Lottery and Charitable Games Control 

Board (“Lottery Board”), began investigating misconduct by 

the Lottery Board and some of its contractors. Thompson’s 

supervisors responded to his inquiries by disparaging and 

reprimanding him, and shuffling him among various security 

and audit positions. Undeterred, Thompson continued to 

investigate and report the results to Lottery Board officials. 

As a final measure of retaliation, in August 1996, a supervisor 

reassigned Thompson from his job as Security Systems 

Administrator to a post as Security Officer. The very next 

day, he told Thompson the new job had previously been 

designated for elimination under an agency-wide reductionin-force, effective in September 1996, and then placed him on 

leave. When Thompson’s job was eliminated in September, 
3 

he was reassigned to a temporary post, which he held until it 

expired in January 1997. Compl. ¶¶ 10–24, 32–33, 45–70. 

Thompson sued the District of Columbia and others, 

alleging (among other claims) that the District punished him 

for First Amendment-protected speech and fired him in 

violation of the Due Process Clause of the Fifth Amendment. 

In 2004, the district court dismissed Thompson’s complaint, 

but this court reversed the dismissal. See Thompson v. 

District of Columbia, 428 F.3d 283 (D.C. Cir. 2005). On 

remand, the district court again dismissed his claims, see 

Thompson v. District of Columbia, 478 F. Supp. 2d 5 (D.D.C. 

2007), and Thompson again appeals. 

II 

Thompson alleges the District of Columbia violated his 

First Amendment rights by punishing him for speaking out 

about corruption. The last time Thompson’s case came 

before this court, we reversed the dismissal of his First 

Amendment claim, explaining the complaint did not provide a 

sufficient factual record for the district court to balance 

Thompson’s interest “in commenting upon matters of public 

concern” with the government’s interest in “promoting the 

efficiency of the public services it performs through its 

employees.” See Thompson, 428 F.3d at 285–87. Shortly 

thereafter, the Supreme Court decided Garcetti v. Ceballos, 

547 U.S. 410 (2006), holding that a threshold question—

“whether the [government] employee spoke as a citizen”—

must be decided before any balancing of interests. Id. at 418. 

As the Court explained, “[t]he First Amendment limits the 

ability of a public employer to leverage the employment 

relationship to restrict ... the liberties employees enjoy in 

their capacities as private citizens.” Id. at 419. However, the 

First Amendment places no restrictions on the government’s 
4 

right to punish employees for speech made “pursuant to their 

official duties.” Id. at 421. Whether employees spoke 

pursuant to their official duties, and thus receive no First 

Amendment protection, is a “practical” inquiry—focusing not 

on formal job descriptions, but on the employees’ actual 

responsibilities. Id. at 424. 

Ordinarily, employees who make recommendations to 

their supervisors on subjects directly related to their jobs are 

carrying out their official duties and thus receive no First 

Amendment protection. See Davis v. McKinney, 518 F.3d 

304, 313 n.3 (5th Cir. 2008) (“the caselaw is unanimous in 

holding that employee’s communications that relate to his 

own job function up the chain of command, at least within his 

own department or division, fall within his official duties and 

are not entitled to First Amendment protection.”). In 

Garcetti, the Supreme Court concluded that a calendar deputy 

for a state district attorney’s office, who wrote a 

memorandum to his supervisors recommending the dismissal 

of a pending prosecution, was speaking as part of his job. 547 

U.S. at 421. Similarly, in Wilburn v. Robinson, 480 F.3d 

1140, 1150–51 (D.C. Cir. 2007), this court held an employee 

who complained to her employer’s personnel office about 

discrimination in salary decisions was speaking pursuant to 

her employment responsibilities, which included exposing 

discriminatory practices in salary and hiring matters. 

Significantly, in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 

2006) (as amended), the Ninth Circuit held a prison guard 

who informed her state Senator and Inspector General about 

harassment she suffered at work was speaking as a citizen, 

and thus protected by the First Amendment; but also held she 

was speaking as an employee when she reported the same 

misconduct to her supervisors. Id. at 545–46.
5 

When employees make recommendations to supervisors 

on subjects directly related to their jobs, they are speaking as 

employees even if the supervisors discourage this speech. In 

Green v. Board of County Commissioners, 472 F.3d 794 (10th 

Cir. 2007), a lab technician alleged her bosses retaliated 

against her for disregarding their instructions and sending 

samples for outside testing. The Tenth Circuit explained the 

First Amendment did not protect the employee from 

discipline because “[h]er disagreement with her supervisors’ 

evaluation of the need for a formal testing policy, and her 

unauthorized obtaining of the confirmation test to prove her 

point, inescapably invoke Garcetti’s admonishment that 

government employee’s First Amendment rights do ‘not 

invest them with a right to perform their jobs however they 

see fit.’” Id. at 801 (quoting Garcetti, 547 U.S. at 422). 

Similarly, in McGee v. Public Water Supply, 471 F.3d 918 

(8th Cir. 2006), an employee alleged his boss fired him for 

speaking out about a project’s non-compliance with 

environmental standards. The Eighth Circuit held his speech 

was part of his job responsibilities, and thus not protected by 

the First Amendment, even though his supervisor had already 

removed him from the project and told him not to worry 

about any environmental problems. Id. at 921. 

In this case, Thompson began his investigations when he 

was Chief of Security, charged with “protecting the assets and 

personnel of the D.C. Lottery through a comprehensive 

system of physical and internal controls designed to detect 

fraud, waste, and abuse within all operational components of 

the D.C. Lottery.” Compl. ¶ 11. He claims at least some of 

his subsequent investigations were outside of his job duties, 

largely because his supervisors shuffled him among various 

security and auditor positions. For example, when Thompson 

tried to audit a contractor for failing to reimburse the Lottery 

Board, one of his supervisors “directed [him] to leave [the 
6 

contractor] alone, telling [him] that he was not permitted to 

audit [the contractor] because he had no right or authority to 

do so.” Compl. ¶ 19.1

Thompson’s argument is no different from that rejected 

in Green and McGee. He does not dispute that his initial 

investigation was a direct part of his job duties, and thus 

unprotected by the First Amendment. He continued to press 

on with similar investigations despite interference and 

transfers—but throughout the entire period, his job was 

related to maintaining the integrity of the Lottery Board’s 

operations and finances, albeit in changing capacities. 

Instructively, he continued to report his findings to Lottery 

Board officials, through verbal communications and written 

reports. As our sister circuits recognized in Green and 

McGee, it would be incongruous to interpret Garcetti, a case 

concerned with allowing the government to control its 

employees within their jobs, as giving broader protections to 

disobedient employees who decide they know better than 

their bosses how to perform their duties. In sum, we hold 

Thompson’s complaints to Lottery Board officials about 

corruption were clearly made pursuant to his official job 

duties and thus the District of Columbia did not violate his 

First Amendment rights by sanctioning him for his speech. 

III 

Thompson alleges the District of Columbia terminated 

him without affording him the procedures guaranteed by the 

 

1

 Thompson urges us to go beyond the complaint and consider 

deposition testimony from two of his supervisors, who claimed he 

was acting outside of his duties during some of his investigations. 

We need not decide whether we can consider this testimony 

because the complaint already alleges that Thompson’s supervisors 

told him he was acting outside of his official duties. 
7 

Due Process Clause of the Fifth Amendment. To state a valid 

procedural due process claim, Thompson must first show he 

had a protected property interest in his job. “Property 

interests are not created by the Constitution, they are created 

and their dimensions are defined by existing rules or 

understandings that stem from an independent source such as 

state law.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 

532, 538 (1985). Thompson had a property interest in his job 

only if, under District of Columbia law, “he did not serve in 

his job at his employer’s ‘will,’ but he could be removed only 

‘for cause.’” Laureano-Agosto v. Garcia-Caraballo, 731 

F.2d 101, 103 (1st Cir. 1984). At the relevant time, the 

District of Columbia’s Comprehensive Merit Personnel Act 

(“CMPA”) provided a “permanent employee in the Career or 

Educational Service ... may be ... removed from the Service

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

the CMPA. D.C. Code § 1-617.1(b) (1981) (emphasis 

added). Accordingly, a D.C. Career Service employee had a 

protected property interest in his job and could not be 

“removed from the Service” without receiving due process. 

See D.C. Dep’t of Corr. v. Teamsters Union Local No. 246, 

554 A.2d 319, 326 (D.C. 1989). 

Assuming Thompson’s job was a Career Service 

position, we must decide whether he correctly claims he was 

“removed from the Service” in August 1996.2

 At that time, 

Thompson’s boss moved him from a permanent position as a 

Security Systems Administrator to a job as a Security Officer, 

informed him the new job was already slated for elimination 

under an agency-wide reduction-in-force (“RIF”), effective 

the following month, and immediately placed him on leave. 

Under the law of both the District of Columbia and this 

Circuit, an employee with a property interest in his job has the 

 

2

 Later in this section, we turn to whether Thompson’s job was a 

Career Service position at this time. 
8 

right to due process if he raises a non-frivolous claim that his 

employer eliminated his job, not as a genuine cost-saving 

measure, but as a pretext for getting rid of him. See Levitt v. 

D.C. Office of Employee Appeals, 869 A.2d 364, 366 & n.4 

(D.C. 2005) (citing Fitzgerald v. Hampton, 467 F.2d 755, 

758–60 (D.C. Cir. 1972)); Thompson, 428 F.3d at 288. This 

case presents a somewhat different question: When an 

employee is transferred to a position scheduled for imminent 

elimination under an otherwise legitimate RIF, does the 

deprivation of his property interests occur when he is 

transferred or when the RIF actually eliminates the position? 3

We hold that when an employer attempts to get rid of an 

employee by transferring him from a Career Service position 

to a job already scheduled for imminent elimination pursuant 

to an otherwise legitimate RIF, the employee is constructively 

removed from the Service at the time of the transfer. Cf. 

Clark v. Twp. of Falls, 890 F.2d 611, 618 (3d Cir. 1989) 

(constructive demotions can trigger due process rights). 

While no case we have found confronted this exact situation, 

our holding is consistent with District of Columbia and 

Circuit law because it recognizes a Career Service employee’s 

right to due process at the time of the allegedly pretextual 

action. See Levitt, 869 A.2d at 366 & n.4 (citing Fitzgerald, 

467 F.2d at 758–60). Indeed, it would make little sense to 

hold an employee’s due process rights are not triggered until 

the RIF actually eliminates his job, in a case where the RIF is 

a genuine streamlining measure that the employee has not 

 

3

 We do not address the question of when the deprivation of a 

property interest occurs in a situation where the employee alleges 

his employer came up with an illegitimate RIF specifically to get 

rid of him. See, e.g., Levitt, 869 A.2d at 366 (employer transferred 

employee into a newly created Career Service position and then 

abolished the “very position it had specifically created for him.”). 
9 

challenged. It is far more sensible to allow the employee to 

bring his challenge at the time of the prextual action—his 

pretextual transfer to the doomed position. 

Applying these principles to the present case is 

straightforward. Thompson’s boss moved him to a job that 

was scheduled for elimination under an agency-wide RIF. 

Thompson does not argue that this RIF, which eliminated 

many positions for streamlining purposes, was illegitimate. 

Rather, his claim is he was transferred to one of the positions 

scheduled for elimination as a mere pretext for getting rid of 

him. Accordingly, assuming Thompson was a Career Service 

employee in August 1996, his transfer was a constructive 

“removal from the service” under the CMPA because he 

raised a non-frivolous claim that this transfer was pretextual.4

Next, we must decide whether Thompson was a Career 

Service employee in August 1996. The parties agree that 

Thompson was a Career Service employee throughout most 

of his time with the Lottery Board. The remaining dispute is 

whether anything deprived him of Career Service status 

before August 1996. On April 26, 1996, Congress enacted 

the Omnibus Consolidated Rescission and Appropriations Act 

(“OCRA”), Pub. L. No. 104-134, § 152(a), 110 Stat. 1321, 

1321-102, which provided, in pertinent part: 

[T]he heads and all personnel of the following offices, 

together with all other District of Columbia executive 

 

4

 The District of Columbia argues Thompson was not deprived of 

his job until January 1997, when the temporary position to which 

he was assigned after the September 1996 RIF, expired. We need 

not decide whether the January 1997 termination was a “remov[al] 

from the Service,” within the meaning of CMPA, because 

answering that inquiry does not change the status of the August 

1996 transfer as a constructive removal, requiring its own process. 
10 

branch accounting, budget, and financial management 

personnel, shall be appointed by, shall serve at the 

pleasure of, and shall act under the direction and 

control of the Chief Financial Officer: The Office of 

the Treasurer. The Controller of the District of 

Columbia. The Office of the Budget. The Office of 

Financial Information Services. The Department of 

Finance and Revenue. 

In Leonard v. District of Columbia, 794 A.2d 618, 625–27 

(D.C. 2002), the D.C. Court of Appeals held all employees 

covered by OCRA became at-will, with no property interests 

in their job. However, OCRA did not cover Lottery Board 

employees—the Lottery Board was not one of OCRA’s listed 

offices or departments and the District of Columbia’s brief 

does not argue that Lottery Board employees were “other 

District of Columbia executive branch accounting, budget, 

and financial management personnel” at any point before 

Thompson was placed in the doomed position in August 

1996.5 Rather, the District points to two orders issued by the 

District of Columbia Financial Responsibility and 

Management Assistance Authority and the District of 

Columbia Chief Financial Officer (“CFO”), which purported 

to place the Lottery Board under the CFO and make its 

employees at-will. Whatever the impact or validity of these 

orders, they have no effect on this case because they issued in 

 

5

 The Lottery Board was established in 1981 and consisted of five 

members, appointed by the Mayor of the District of Columbia. See 

D.C. Code. § 3-1301. The record sheds no light on the proper 

classification of Board employees, so we rest our decision on the 

District’s failure to argue these employees were “other District of 

Columbia executive branch accounting, budget, and financial 

management personnel,” within the meaning of OCRA. 
11 

September 1996, a month after Thompson was constructively 

removed from the Service.6

Thompson was a Career Service employee when his 

supervisor transferred him to a doomed position in order to 

get rid of him, thus depriving him of his property interest in 

his job. Because the District of Columbia does not argue that 

Thompson’s claim of pretext was frivolous and does not 

contend it afforded him sufficient process, we reverse the 

dismissal of his due process claim. 

* * * 

 The judgment of the district court is therefore affirmed in 

part and reversed in part, and the case is remanded for further 

proceedings. 

So ordered.

 

6

 Any other subsequent changes to the status of Lottery Board 

employees are similarly irrelevant.