[00:00:02] Speaker 05: Case number 18, that's 7151. [00:00:05] Speaker 05: Michelle Thompson, personal representative of the estate of James Alley Thompson, Jr. [00:00:11] Speaker 04: Appellant, versus district of Columbia and L. Mr. Salt for the appellant, Ms. [00:00:14] Speaker 04: Wilson for the appellant. [00:00:18] Speaker 01: Good morning, your honors. [00:00:19] Speaker 01: May it please the court, I'm Micah Salve, representing the estate of James Thompson. [00:00:24] Speaker 01: I'm joined here today by Michelle Thompson in the front row behind me. [00:00:28] Speaker 01: I'd like to reserve four minutes for rebuttal. [00:00:31] Speaker 01: Your Honors, the District of Columbia must be held responsible when it empowers an employee with complete and unreviewable authority, and the employee uses that authority to cause constitutional harm. [00:00:46] Speaker 01: Here, the District gave Frederick King plenary power to conduct a reduction in force, free from any oversight or review. [00:00:55] Speaker 01: He used that power [00:00:56] Speaker 01: to engineer the firing of an employee whose complaints about fraud, waste, and abuse in the government angered Mr. King. [00:01:05] Speaker 01: Fundamentally, Mr. King used his policy-making authority to harm Mr. Thompson. [00:01:14] Speaker 01: The District of Columbia is therefore liable. [00:01:17] Speaker 00: Now, if the dist- That makes, kind of, makes several statements there that have been challenged. [00:01:25] Speaker 00: by the District of Columbia in the briefing. [00:01:29] Speaker 00: But the most, I think, important and fundamental one in my view is the decision to transfer Mr. Thompson from his position to another position that would be eliminated in the reduction in force. [00:01:50] Speaker 00: The district contends that that decision and [00:01:54] Speaker 00: and we've held in prior cases that that decision was tantamount to a termination that was governed by the CMPA in that he is not the, I guess, final authority or the decision maker with respect to the CMPA. [00:02:16] Speaker 00: So what is your response to that? [00:02:19] Speaker 01: Judge Wilkins, I can ignore that fact entirely. [00:02:21] Speaker 01: I don't mean ignore it. [00:02:22] Speaker 01: But I mean, I don't need to challenge the factual accuracy of that, though I do, because it doesn't matter. [00:02:31] Speaker 01: Monell is not about focusing on non-governmental causes. [00:02:36] Speaker 01: So what we have here are a combination of causative events. [00:02:42] Speaker 01: We have governmental action. [00:02:44] Speaker 01: Mr. King, in his final policymaker authority, [00:02:48] Speaker 01: guys, hat, creating the reduction in force list, the rift list, putting the vacant position on that list, and then later effectuating the rift, right? [00:03:03] Speaker 01: So he clearly, it's undisputed, that he acted in his final policymaker capacity. [00:03:10] Speaker 00: But for someone to get on the rift list, they have to be placed in the position that is to be ripped. [00:03:16] Speaker 01: Right. [00:03:17] Speaker 01: But the Supreme Court in Monell was not focused on what everybody else did. [00:03:26] Speaker 01: Like when we're talking to our children, they do something wrong. [00:03:29] Speaker 01: And they say, no, no, no. [00:03:30] Speaker 01: It wasn't my fault. [00:03:30] Speaker 01: He started it. [00:03:32] Speaker 01: What do we say? [00:03:33] Speaker 01: It's not about what he did. [00:03:34] Speaker 01: We're not talking about that right now. [00:03:36] Speaker 01: What we're talking about is what you did. [00:03:38] Speaker 01: Here, Monell, the court is focused on what the government did wrong. [00:03:45] Speaker 01: It doesn't matter. [00:03:46] Speaker 00: The government here is Mr. King. [00:03:48] Speaker 00: I'm sorry? [00:03:49] Speaker 00: The government here is Mr. King, though, right? [00:03:51] Speaker 01: Correct. [00:03:52] Speaker 01: And so the government, Mr. King, did several events which caused the outcome. [00:04:00] Speaker 00: One of them is transferring him to or reclassifying him to another position. [00:04:06] Speaker 01: Right. [00:04:06] Speaker 01: And so in Monell, the court [00:04:09] Speaker 01: held that when the government is the, I don't know why this phrase always sort of runs out of my head, the moving force. [00:04:20] Speaker 01: I know why it comes out of my head, the moving force. [00:04:23] Speaker 01: I don't know what moving force means. [00:04:25] Speaker 01: This court has explained repeatedly that it means proximate cause. [00:04:29] Speaker 01: And there's nothing about proximate cause, your honor. [00:04:34] Speaker 01: that disallows more than one. [00:04:36] Speaker 05: I don't think that, or I don't understand, and he can correct me, I don't understand Judge Wilkins' question to be talking about multiple causation. [00:04:44] Speaker 05: I take him to be pointing out that Mr. King corrected the title, ostensibly, of the job that Mr. Thompson held, and that that was the action that caused [00:05:04] Speaker 05: determination and do we know whether he was final policy maker on that and or whether the CMPA governed that? [00:05:14] Speaker 05: And one of my questions for you in that regard was there were some administrative appeals that Mr. Thompson filed and they were withdrawn and I'm not sure, can you explain what those concerned and why they were withdrawn? [00:05:29] Speaker 01: Yes, the appeal related, and parenthetically this was addressed by Thompson III, the appeals related solely to the reduction force. [00:05:40] Speaker 01: I've been litigating this case [00:05:42] Speaker 01: for a very long time, I remember quite well. [00:05:45] Speaker 01: The administrative judge said, we're not talking about anything other than the reduction in force. [00:05:51] Speaker 01: And when it became clear that the issue that's now before this court was outside of the purview of the administrative appeal, there was no utility to pursuing it, the judge made that. [00:06:04] Speaker 00: But was the transfer part of that administrative [00:06:11] Speaker 01: No, no, no. [00:06:14] Speaker 01: I beg your pardon, the OEA, the Office of Administrative Appeals, the judge was absolutely adamant that that would not be included in the application. [00:06:24] Speaker 00: No, no, that's not my question, sir. [00:06:25] Speaker 00: My question is, did you challenge the transfer before the administrative judge, and then the administrative judge said, no, I don't have jurisdiction to adjudicate the correctness or propriety of that transfer? [00:06:43] Speaker 01: Yes, we try to challenge. [00:06:46] Speaker 01: Where is that in the record? [00:06:48] Speaker 01: Oh, I I'm sorry that is your case hinges on that respectfully know you're in my view your honor first of all that issue was addressed in Thompson 3 I believe that that issue is is is how was it addressed in Thompson 3 such that we shouldn't hear about? [00:07:07] Speaker 01: the issue [00:07:09] Speaker 01: following Thompson III was limited to whether Monell, the only question that remained in the case was whether Monell created a shield for the District of Columbia. [00:07:23] Speaker 01: And in that regard, it doesn't matter. [00:07:28] Speaker 01: Well, none of these other aspects of the case matter. [00:07:34] Speaker 01: Monell turns on not whether there are [00:07:37] Speaker 01: multiple causative events. [00:07:41] Speaker 01: In Bryan County, there were both governmental and nongovernmental causative events. [00:07:49] Speaker 01: But despite that, the court still permitted liability, because Monell does not limit liability to circumstances in which the government is the sole wrongdoer. [00:08:02] Speaker 00: But Mr. King is the person who transferred [00:08:07] Speaker 00: Thompson to the RIF position, and he is a governmental actor. [00:08:14] Speaker 00: Yes. [00:08:14] Speaker 00: So that's not a non-governmental event. [00:08:18] Speaker 01: Well, the transfer is non-governmental in the sense that it was not performed, at least according to the argument of the defendant, by a final policymaker. [00:08:27] Speaker 01: So it is still governmental, but it's not final policymaker action. [00:08:31] Speaker 00: Then that means that's the whole point, is to, if it's performed by someone who is not the final policymaker, then why isn't that fatal to you under [00:08:44] Speaker 01: Because, because Monell does not focus solely on whether there, in fact, Monell doesn't focus on whether there are non-final policymaker actions. [00:08:59] Speaker 01: The focus of Monell is whether there are final policymaker actions and whether those are causative [00:09:07] Speaker 01: in the language of Monell, right? [00:09:09] Speaker 01: Causative meaning proximate cause, meaning a substantial fact. [00:09:14] Speaker 01: This court has held repeatedly a substantial fact. [00:09:17] Speaker 01: The Ninth Circuit explained, and I don't think that this court has addressed the sort of concurrent causes problem that we're discussing. [00:09:25] Speaker 01: But the Ninth Circuit wrote in Jones versus Williams, the conduct of two or more persons can operate at the same time, either independently or together, to cause injury or damage, [00:09:37] Speaker 01: And in such a case, each may be approximate cause. [00:09:41] Speaker 05: Mr. Zell, I am having trouble understanding why you're focusing on multiple causation. [00:09:48] Speaker 05: We're talking about whether Mr. King is the final policymaker for the relevant action here or not. [00:10:00] Speaker 05: And, right? [00:10:02] Speaker 01: Well, yes, but when we're talking about the relevant action, [00:10:06] Speaker 01: We don't want to fall in the trap that the district has laid for us of assuming that the relevant action is just the transfer. [00:10:14] Speaker 05: That transfer... There was no transfer. [00:10:16] Speaker 05: There was a reclassification of positions. [00:10:19] Speaker 06: Oh, no, no, Your Honor. [00:10:20] Speaker 05: Well, I think it... I mean, I think we'll actually allot rides on that because CMPA covers transfers. [00:10:26] Speaker 05: I'm not sure that it does cover classification of positions, but be that as it may, the move that was made to [00:10:35] Speaker 05: take Thompson from a job where he had job security into a job that was ripped, whatever you want to call that. [00:10:45] Speaker 05: The question is, did King have final policymaking authority over that? [00:10:48] Speaker 05: Is that not the question? [00:10:51] Speaker 01: It is not, Your Honor. [00:10:53] Speaker 01: I assume out of time, but if the Court will allow it. [00:10:55] Speaker 05: You can keep answering questions as long as we have them. [00:11:04] Speaker 01: Proximate cause is not concerned solely with the immediate direct cause. [00:11:22] Speaker 01: When we look at proximate cause, whether we use a but-for standard, whether we use the substantial factor standard, we look at all the causative events. [00:11:36] Speaker 01: The transfer into the doomed position would have been meaningless, but for the fact that the very day before, Mr. King had slated that position for elimination. [00:11:50] Speaker 01: Mr. King knew what he was doing and intended the outcome. [00:11:55] Speaker 01: In Pembar, the Supreme Court held that when the policymaker [00:12:02] Speaker 01: intends an action. [00:12:04] Speaker 01: I beg your pardon. [00:12:04] Speaker 01: I think I'm talking about Bryan County. [00:12:07] Speaker 01: When Bryan County versus Brown. [00:12:10] Speaker 01: When the policymaker intentionally deprives somebody of a federally protected right, proximate cause is established. [00:12:22] Speaker 01: The action does not have to be the fatal blow. [00:12:30] Speaker 01: There has to be proximate cause. [00:12:32] Speaker 01: Monell says there has to be, the governmental action has to be the moving force. [00:12:39] Speaker 01: This court in multiple cases, Monroe versus DC being one of them, said that by moving force, the Supreme Court means there has to be proximate cause. [00:12:52] Speaker 03: So as to, I'm not sure why you're so afraid of the middle step. [00:12:58] Speaker 03: First of all, [00:12:59] Speaker 03: Our remand was to look for, ask whether Manel applied to the personal decisions, personnel decisions, plural, not a single personnel decision. [00:13:09] Speaker 03: So that's consistent with your, we look at the whole picture of how this happened, generally referred to as three steps. [00:13:18] Speaker 03: Now if, in looking at that second step, it's a reclassification as it was originally characterized. [00:13:25] Speaker 03: Is there any question that King was the final policy maker as to reclassifications? [00:13:31] Speaker 01: From my perspective, no. [00:13:33] Speaker 03: As the district argued that the CMPA applies to reclassifications? [00:13:38] Speaker 01: That's interesting, Your Honor. [00:13:39] Speaker 01: No. [00:13:40] Speaker 01: OK. [00:13:41] Speaker 03: Now, if it's a transfer, we found in our prior opinion that Mr. King was transferring people around as part of implementing this riff. [00:13:53] Speaker 03: And so that he was a final policymaker as to transfers in implementing the RIF. [00:13:58] Speaker 03: Now the transfers there were to protect people. [00:14:01] Speaker 03: I don't know why it would be any different. [00:14:02] Speaker 03: It was a transfer to harm somebody. [00:14:05] Speaker 03: And so as to that transfer, if it's a RIF implementation transfer, was he not the final policymaker? [00:14:13] Speaker 01: He was. [00:14:14] Speaker 03: Then why are you running away from this? [00:14:17] Speaker 03: You've got him creating the spot. [00:14:19] Speaker 03: You've got him either reclassifying or transferring. [00:14:22] Speaker 03: as implementing the RIFT, and then you've got him executing the RIFT. [00:14:25] Speaker 03: I don't understand why you spent so much time trying to avoid that. [00:14:30] Speaker 01: I suppose I might have just sort of fallen into that trail, Your Honor. [00:14:34] Speaker 01: We argued in our brief that Mr. King was a final policymaker as to all three steps, but we thought that perhaps we could sidestep [00:14:46] Speaker 01: the debate that we would have with our colleague over whether Mr. Tom, whether Mr. King was a final policymaker as to step two, the transfer slash reclassification. [00:14:57] Speaker 01: And so we don't need to get into that because proxies cause analysis. [00:15:01] Speaker 03: Look, we're supposed to look at whether this collection of personnel decisions, whichever one has broken into three steps, collectively, he was final policymaker as to, right? [00:15:11] Speaker 03: And if he certainly was as to one, as to three, nobody's debated that. [00:15:15] Speaker 03: And the question is just how do you look at that second step? [00:15:21] Speaker 03: It's a reclassification, he's a final policy maker. [00:15:23] Speaker 03: If it's a transfer and implementing the RIFT, he's a final policy maker. [00:15:27] Speaker 03: If it's an ordinary routine transfer independent of the RIFT, maybe that would be in CMPA land where there would be a more substantial question. [00:15:39] Speaker 03: But I guess my question to you is it wasn't an ordinary [00:15:45] Speaker 03: transfer or was it a RIF implementing transfer like the other ones referenced in Thompson 3? [00:15:51] Speaker 01: It was clearly a transfer related to the RIF. [00:15:55] Speaker 01: Now, one can argue that a reduction in force is about eliminating positions, not personnel. [00:16:04] Speaker 01: That was not the case at the lottery. [00:16:06] Speaker 03: Well, we found in Thompson 3, not found, we held in Thompson 3 that on the record he was moving people around [00:16:13] Speaker 03: as part of implementing this riff. [00:16:15] Speaker 01: That's correct, Your Honor. [00:16:16] Speaker 01: And so in that regard, to the extent that transferring Mr. Thompson into the doomed position was part of the riff, as we have contended from day one, then yes, Mr. King was acting according to his final policy in doing the transfer. [00:16:35] Speaker 00: The question as to whether or not he's a policy, final policymaker is a legal question. [00:16:44] Speaker 00: So what law, regulation, statute are you pointing to to support the contention that he was the final policymaker as to transfers or reclassifications? [00:17:02] Speaker 01: The 1645, there was a special law that was passed at the behest of the financial control board. [00:17:11] Speaker 01: You're probably too young to remember that, Your Honor. [00:17:13] Speaker 00: I dealt with all of that. [00:17:15] Speaker 00: I litigated all of it. [00:17:18] Speaker 01: The control board required that there be a reduction in force. [00:17:23] Speaker 01: The D.C. [00:17:23] Speaker 01: Council complied by passing this law that [00:17:27] Speaker 01: allowed for the reduction in forces at various agencies to happen by command of the agency head with zero involvement, zero appellate rights. [00:17:40] Speaker 00: I don't recall that statute saying anything about classifications, reclassifications, training. [00:17:46] Speaker 01: No, it didn't. [00:17:48] Speaker 01: I don't think that it atomized the decision making associated with reduction in force so narrowly. [00:17:53] Speaker 01: But I don't think it has to have done. [00:17:55] Speaker 01: in order to empower Mr. King to act with final policymaker authority. [00:18:00] Speaker 00: The specific... If that were the case, then it seems like Thompson III would have so held. [00:18:05] Speaker 00: There was a remand for a purpose. [00:18:07] Speaker 01: Respectfully, Your Honor, I think Thompson III was pretty clear. [00:18:12] Speaker 01: Judge Griffith wrote what seemed to me a rather long opinion explaining that Monell was no problem for Mr. Thompson. [00:18:21] Speaker 01: Judge Leon? [00:18:22] Speaker 01: not only went in a different direction, but effectively ignored this court. [00:18:28] Speaker 01: I don't think that Monell Thompson III really left very many questions. [00:18:36] Speaker 01: Under Thompson III, we prevail in Monell. [00:18:39] Speaker 03: Well, I think we are pretty serious when we say to remand something for briefing. [00:18:42] Speaker 03: I think that the opinion flagged concerns that would need to be addressed, but we don't remand [00:18:50] Speaker 03: I understand that. [00:18:55] Speaker 03: The job we asked here in the question is how do we deal with this sort of thorny situation of at least this middle step in these collective personnel decisions that we're trying to decide whether those three collective steps were what their status was. [00:19:11] Speaker 01: Your Honor, I believe that the district judge [00:19:17] Speaker 01: I think the district judge could have written a better decision that would have been more helpful to this panel had he given some weight to the panel to the Thompson III guidance. [00:19:29] Speaker 01: That being the case, the case being what it is, I can tell you that the parties certainly took it very seriously and we addressed it very seriously. [00:19:38] Speaker 01: and argued there, we argued that Mr. King was a final policymaker as to all three steps. [00:19:48] Speaker 01: But we also take the view that it is conceptually incorrect to assume or to take the position that each step, each causative event must be caused [00:20:06] Speaker 01: by the government in its final policymaker guise. [00:20:10] Speaker 01: I'm not going to go back into that point. [00:20:12] Speaker 03: Does the CMPA apply to internal agency reclassifications? [00:20:21] Speaker 01: This was described by Mr. King as a correction of the position title. [00:20:29] Speaker 03: Does the CMPA apply to that? [00:20:30] Speaker 03: Put aside the legal conclusion that what happened from these three steps was a constructive removal. [00:20:38] Speaker 03: The district court was looking at steps in isolation, so if we just look at reclassification, does the CMPA apply? [00:20:47] Speaker 01: I don't think so. [00:20:48] Speaker 03: I do not believe that... Do you know whether it applies to an internal agency transfer where for the time he was still there, put aside again the constructive removal part, he didn't have a change in job responsibilities pay? [00:21:02] Speaker 01: Correct. [00:21:02] Speaker 01: And I believe that the answer to that is no. [00:21:05] Speaker 01: In fact, there was so little change that Mr. Thompson was unaware of it. [00:21:10] Speaker 03: He didn't know that... So what made the CMP applicable was that in fact it was. [00:21:15] Speaker 03: as a matter of law, if not factual action by Mr. King, a constructive removal. [00:21:21] Speaker 03: And of course, the CNPA applies to removes. [00:21:23] Speaker 01: That's right. [00:21:24] Speaker 01: That's right. [00:21:24] Speaker 01: But the fact that this court found in Thompson 2 that it was a constructive termination does not direct Thompson 4's outcome. [00:21:35] Speaker 01: Because there are different analyses. [00:21:39] Speaker 01: There are different questions. [00:21:41] Speaker 01: Context matters. [00:21:43] Speaker 01: And so while the constructive termination effectuated by the transfer was central, when we're looking at the moment in time at which appellate or sort of internal appeal rights would have been triggered, that's not the analysis in the Menel context. [00:22:02] Speaker 01: In the Menel context, as you've noted, Judge Millett, we look much more holistically. [00:22:07] Speaker 01: We look at the entire course of events. [00:22:10] Speaker 03: And if you have to look at the agency act, the relevant action is just that we describe that relevant action as a collection of personnel decisions, not the single personnel decision. [00:22:19] Speaker 03: Correct, Your Honor. [00:22:21] Speaker 05: And the, I think you answered this question, but just to make sure that I understand what you said. [00:22:29] Speaker 05: In pursuing and then abandoning an administrative challenge to the termination in the RIF, [00:22:38] Speaker 05: was, did Mr. Thompson make any argument that to the extent that the law authorizing the RIF eliminated any process rights, that that was a due process violation in and of itself as applied? [00:22:54] Speaker 01: I'm sorry, Judge Pillard, can you repeat that question? [00:22:56] Speaker 05: Pillard. [00:22:57] Speaker 05: Pillard, I'm sorry. [00:22:59] Speaker 05: That the, to the extent that [00:23:03] Speaker 05: Mr. Thompson was riffed and that the riff legislation says there are no rights attending the riff. [00:23:11] Speaker 05: Was there any claim and could there have been any claim that taking away those rights with respect to non-at-will employees was itself a due process violation that's applied to those employees? [00:23:26] Speaker 01: That is an interesting and big question, Your Honor. [00:23:29] Speaker 01: I think that [00:23:33] Speaker 01: And sort of the easy answer is, hey, the government, the state government, district government, gets to decide what process is allotted to people. [00:23:46] Speaker 01: Due process is not that you get a hearing, it's that you get whatever the government says you get. [00:23:52] Speaker 01: If we step back, maybe push a little bit harder, we may well say, [00:24:00] Speaker 01: Gosh, here's a guy who has worked for, and I'm just thinking about Mr. Thompson, but this is true generally, right? [00:24:06] Speaker 01: Worked for the government for 20 years. [00:24:08] Speaker 01: He's been at lottery for a decade, enjoying civil service rights. [00:24:17] Speaker 01: And now, the law changes to deprive him of those rights. [00:24:25] Speaker 01: I do not believe that we, forgive me, I don't know whether we made the argument that the law, the underlying law, was itself improper. [00:24:38] Speaker 05: At least as applied to someone in a position like Mr. Thomas. [00:24:42] Speaker 01: Correct. [00:24:42] Speaker 01: at least as applied. [00:24:44] Speaker 01: Speaking more broadly, I think there are lots of circumstances where it would be fine. [00:24:47] Speaker 01: But as applied in Mr. Thompson's case, perhaps we might have been able to make that argument. [00:24:52] Speaker 01: I don't think that's an argument the OEA ever would have entertained, because it's a much bigger question. [00:25:00] Speaker 01: But to be sure, it was changing the ground rules for Mr. Thompson. [00:25:10] Speaker 03: All right, thank you. [00:25:11] Speaker 01: Thank you, Judge. [00:25:11] Speaker 03: We will allow you some time for rebuttal. [00:25:20] Speaker 04: Good morning, and if it please the court, I'm Mary Wilson, representing the District of Columbia. [00:25:24] Speaker 04: The plaintiff has failed to carry his burden to show the district's direct liability for the due process violation here. [00:25:32] Speaker 04: Judge Millett, in Thompson 3, the court said, for our purposes, it is the substance of a constructive termination [00:25:40] Speaker 04: and then not the semantics of a transfer or reclassification that matters in determining whether Thompson was deprived of his property interest in his job. [00:25:49] Speaker 04: If it was a mere transfer or a mere reclassification, he had no property interest in that. [00:25:55] Speaker 04: He has a property interest in a due process. [00:25:57] Speaker 03: We did remand to address whether personnel decisions collectively, plural, not singular. [00:26:03] Speaker 03: Yes, but even looking at the- We can't just carve out one step. [00:26:06] Speaker 04: But even looking at the totality of the circumstances here, Mr. Thompson has long ago conceded in this case that the riff was not illegitimate, that the riff was legal. [00:26:17] Speaker 04: That's in Thompson 2. [00:26:19] Speaker 04: It was clear in his argument in Thompson 3, if you listen to the tape, especially his rebuttal. [00:26:24] Speaker 04: The riff was not illegal. [00:26:25] Speaker 04: The riff was not the basis of his claim here. [00:26:28] Speaker 04: The due process claim arises from the [00:26:33] Speaker 04: from the deprivation of fair procedures. [00:26:35] Speaker 04: He was denied fair procedures when he was constructively terminated. [00:26:39] Speaker 04: The CMPA says, if you are terminated, you get procedures. [00:26:43] Speaker 03: I understand, but I guess constructive removal is the label for the three, I'm going to call it the three personnel decisions, plural, that led to this outcome. [00:26:53] Speaker 03: That's what was a constructive removal. [00:26:55] Speaker 03: If he had been transferred, but that position had just, or reclassified, whatever you want to call it, and that position had not been riffed, the third step [00:27:03] Speaker 03: There would have been no constructive removal. [00:27:05] Speaker 03: You would agree with that. [00:27:06] Speaker 03: It takes all three steps to have the constructive removal. [00:27:11] Speaker 03: It's just that the transfer, knowing what had happened before and knowing the third step that was coming, transferring someone into a doomed position, that is step three, is what becomes a constructive removal. [00:27:25] Speaker 03: The transfer by itself without that third step is not into a doomed position or a constructive removal. [00:27:33] Speaker 03: It has to be a doomed position. [00:27:35] Speaker 03: That's what we said was a constructive removal. [00:27:36] Speaker 03: It was transferred to a doomed position. [00:27:38] Speaker 03: It wasn't doomed unless it was, and actually was, ripped. [00:27:42] Speaker 04: But it's really a two-step process, because Mr. King designated the position to be ripped one day, and then the next day transferred reclassified or constructively terminated [00:27:54] Speaker 03: No, no, he transferred him in. [00:27:55] Speaker 03: I don't know how you get out of three steps. [00:27:57] Speaker 03: You actually have to have, if he had then decided on day three, wait a minute, I'm taking that position out of the riff, then it wouldn't have mattered. [00:28:06] Speaker 03: So you have to have all three steps. [00:28:08] Speaker 03: There's certainly steps two and three. [00:28:09] Speaker 03: Yes. [00:28:10] Speaker 03: Put him in and then eliminate the position. [00:28:12] Speaker 04: The riff itself was legal. [00:28:14] Speaker 04: Mr. King had authority to designate a position to be riffed. [00:28:19] Speaker 04: Designating this position to be riffed did not implicate a property interest [00:28:23] Speaker 04: and did not deny Mr. Thompson of any protected property interest. [00:28:29] Speaker 04: The property interest that creates the due process claim that keeps us here in this case was, I mean, Thompson too says, Thompson does not argue that his riff was illegitimate, rather his claim is he was transferred to one of the positions scheduled for elimination as a mere... [00:28:48] Speaker 04: And the claim arises at the time of the protectual action. [00:28:52] Speaker 04: This is Thompson, too. [00:28:53] Speaker 04: The claim arises as protectual transfer to the two... Only if we know the ending. [00:28:58] Speaker 03: Would you agree that if in fact step three had never happened, if on the day after he moves Mr. Thompson into this position, if on the third day Mr. King had said, wait a minute, I don't want to eliminate that position. [00:29:14] Speaker 03: We need a security officer. [00:29:16] Speaker 03: I was just reclassifying him. [00:29:18] Speaker 03: and so removed that position into which he'd been moved from the RIF list. [00:29:24] Speaker 03: Would you have a constructive removal? [00:29:29] Speaker 04: Well, Times and Two says the constructive removal was at the time [00:29:32] Speaker 04: Would you have really assuming that the doomed, doomed. [00:29:37] Speaker 05: And so it became undoomed. [00:29:39] Speaker 05: That statement incorporates step three by hypothesis. [00:29:44] Speaker 05: It's a description focusing on step two, but it incorporates what Judge Millett was referring to as step three. [00:29:50] Speaker 05: The doomed position. [00:29:51] Speaker 03: That's where you get the adjective doomed. [00:29:52] Speaker 03: Yes. [00:29:55] Speaker 03: The other question I had about the CMPA is I get that it applies to removals. [00:30:01] Speaker 03: And we certainly recognize that he had a property interest in his position prior to the at-will statute being enacted. [00:30:11] Speaker 03: But it seemed very odd to me in your brief to sort of say this was human resources' job because when you talk about constructive removals, nobody sends a memo to human resources that says, [00:30:25] Speaker 03: wink, wink, nod, nod, this transfer, this reclassification, it's a constructive removal, you better apply your procedures. [00:30:33] Speaker 03: What happens with constructive removals is you don't get procedures until after the fact. [00:30:37] Speaker 04: I think that makes sense, Your Honor, that Mr. King knew it was a constructive removal. [00:30:42] Speaker 04: Mr. King was bound to follow the CMPA. [00:30:44] Speaker 04: Mr. King was the personnel authority who had to make sure [00:30:50] Speaker 03: Sorry, so he did, but Mr. King was a final policymaker as to identifying the RIF, I'm just going through this one at the same time, identifying the RIF, the first step, identifying positions for the RIF. [00:31:00] Speaker 03: The first step. [00:31:01] Speaker 03: Identifying positions for the RIF, he was a final policymaker. [00:31:04] Speaker 04: He had absolute discretion to identify positions to be eliminated. [00:31:08] Speaker 03: Right, so he was a final policymaker. [00:31:09] Speaker 03: And he concedes that the RIF itself was legal. [00:31:11] Speaker 03: He was a final policymaker. [00:31:13] Speaker 03: I'm going to keep asking my question. [00:31:14] Speaker 03: King was a final policymaker. [00:31:15] Speaker 04: It doesn't matter, Your Honor. [00:31:17] Speaker 03: I would like it. [00:31:17] Speaker 03: It matters to me. [00:31:18] Speaker 03: So as to the first step, do you dispute that King was the final policymaker on identifying positions for RIF? [00:31:24] Speaker 04: The statute gave him absolute discretion to pick positions. [00:31:27] Speaker 03: I'm going to ask it again. [00:31:28] Speaker 03: Do you dispute? [00:31:29] Speaker 04: With limited review. [00:31:30] Speaker 03: Do you dispute? [00:31:31] Speaker 03: So do you dispute or not? [00:31:32] Speaker 03: I didn't see this anywhere in your brief. [00:31:35] Speaker 03: Do you dispute that as to identification of positions for RIF, he was a final policymaker? [00:31:41] Speaker 03: Did you argue that in District Court or here? [00:31:44] Speaker 04: He probably was, but it doesn't matter. [00:31:46] Speaker 03: Did you argue that in District Court or here? [00:31:47] Speaker 03: I don't, I'll decide what matters to me. [00:31:48] Speaker 03: I don't think it matters because Ms. [00:31:50] Speaker 03: Stieber-Romsey. [00:31:50] Speaker 03: I'll decide what matters to me. [00:31:51] Speaker 03: So I'm just trying to get, I'm trying to, I'm sorry, I just, I want to be fair to you about what your position is. [00:31:56] Speaker 03: And so maybe it's easier to say you did not dispute in the District Court or here that as to step one identifying positions for a RIF, he was the final house. [00:32:05] Speaker 04: But as to the RIF, he was not bound by the CMPA. [00:32:07] Speaker 04: The RIF was outside the CMPA. [00:32:10] Speaker 04: The CNPA rights do not apply to the RIF. [00:32:12] Speaker 04: The RIF was legal. [00:32:14] Speaker 04: To the extent he had unlimited discretion and was a policymaker as to the RIF, it doesn't matter. [00:32:25] Speaker 04: Because he was denied fair procedure. [00:32:28] Speaker 04: That's not when he was denied fair procedures. [00:32:31] Speaker 04: He wasn't denied fair procedures at the RIF. [00:32:33] Speaker 04: He was denied fair procedures when, as Thompson 2 said, and this court agreed in Thompson 3, [00:32:40] Speaker 04: At the time of the contextual action. [00:32:42] Speaker 00: But let me ask this question. [00:32:47] Speaker 00: Let's suppose he had not been transferred to a position that was RIFT. [00:32:53] Speaker 00: He was just reclassified to some other position. [00:32:58] Speaker 00: But he didn't like that position. [00:33:02] Speaker 00: Would he have the ability to challenge that reclassification pursuant to the CMPA? [00:33:11] Speaker 04: If there was no demotion and no reduction in salary, not that I know of, no. [00:33:21] Speaker 00: So explain to me how is it then that, and so in that sense, that reclassification, King would be the final policymaker. [00:33:41] Speaker 04: Well, as we would not be here, the court would not have said that Mr. Thompson has a... I don't care whether we would be here or not. [00:33:50] Speaker 00: I'm asking you a question, and I want you to answer it. [00:33:56] Speaker 04: Could you repeat the question, please? [00:33:59] Speaker 00: In a circumstance where an employee were transferred or reclassified by King in 1996, [00:34:10] Speaker 00: and there was not, that new position was not subject to a riff, but the employee just didn't like the being reclassified or transferred, would they have had any rights under the CMPA to challenge that? [00:34:26] Speaker 04: Not that I know of, no. [00:34:28] Speaker 04: If the transfer is not a demotion, a constructive, if it's not a constructive termination, no. [00:34:35] Speaker 00: And so in that sense, [00:34:38] Speaker 00: King taking that action would be a final policymaker under the rubric of Monell? [00:34:48] Speaker 04: Well, he was still subject to review by the board. [00:34:55] Speaker 04: The board still had to review. [00:34:57] Speaker 04: He was not a final policymaker because his authority was tempered by supervision by the board. [00:35:07] Speaker 04: And also, any action could be reviewed at OEA. [00:35:14] Speaker 04: So as a propotnik, where the city has formed an independent adjudicative body to review potentially illegal personnel decisions, then the decision maker is not the ultimate policymaker. [00:35:28] Speaker 05: I'm not sure I follow that second part, because my understanding was that the [00:35:32] Speaker 05: OEA is the body that applies to CMPA. [00:35:36] Speaker 05: And so if it's something where there's no CMPA rights, what would he bring as a legal matter to the OEA? [00:35:43] Speaker 04: If it was merely reclassification that was not illegal, he has no deprivation of any property interest and nothing to challenge. [00:35:52] Speaker 04: The deprivation of the property interest here comes because everything amounted to a constructive termination [00:35:59] Speaker 03: If you take out the three pieces, the national property interest triggers the due process clause, but I had thought the CMPA applied to certain actions, and I thought your answer was it doesn't apply to a reclassification that does not, unless that in its own operation changes benefits, pay, grades, status, the things listed in the statute, correct? [00:36:23] Speaker 03: The same for internal agency transfer. [00:36:27] Speaker 04: Yes, but if you take each three steps here, [00:36:30] Speaker 04: And none of the three steps, designating a particular position to be REFT, that doesn't implicate a property interest. [00:36:40] Speaker 04: Transferring him to another, or reclassifying his position, that doesn't implicate a property interest. [00:36:46] Speaker 04: Or, actually, effectuating the REFT. [00:36:50] Speaker 03: Does a CMP apply just if someone shows they have a property interest? [00:36:53] Speaker 03: I didn't read the CMPA as the due process clause requires a property interest. [00:36:57] Speaker 04: His property interest arises here because he was a career employee who could be fired only for cause. [00:37:04] Speaker 03: So your last appeal here, which was after we had found a constructive removal. [00:37:08] Speaker 03: So the constructive removal had been found. [00:37:10] Speaker 03: Yes. [00:37:10] Speaker 03: And your last appeal here, you the district employee, I don't remember who argued it, but continued to argue that he had no due process rights, notwithstanding that it was a constructive removal. [00:37:21] Speaker 03: So I don't know how you can say an illegal reclassification triggers a CMPA. [00:37:27] Speaker 03: Your position last time you were here was that the CMPA was not triggered even though we had already held that it was a constructive removal. [00:37:34] Speaker 03: So what was your rationale last time for why the CMPA didn't apply to this constructive removal? [00:37:45] Speaker 04: I think our argument has always been that the CMPA did apply to it. [00:37:49] Speaker 03: No, you most certainly did not. [00:37:51] Speaker 03: could argue. [00:37:52] Speaker 03: We had held in Thompson 2 that there was a constructive removal, correct? [00:37:55] Speaker 03: Yes. [00:37:56] Speaker 03: And in your last argument, your last case, Thompson 3, you were still arguing that he was not entitled to process. [00:38:02] Speaker 04: I think we had an argument in Thompson 3 that any lack of process was harmless because he went to the OEA and affirmatively withdrew his... I thought your argument about [00:38:18] Speaker 05: why he was not entitled to any process was because the RIF legislation took it away. [00:38:25] Speaker 04: And if it's under the RIF, no process. [00:38:29] Speaker 04: There is no process to challenge the designation of a particular position to be RIF. [00:38:34] Speaker 05: The CMPA... But if you are an employee with a property interest at your job and you're subject to the RIF, you do have CMP rights? [00:38:44] Speaker 05: No, no. [00:38:47] Speaker 04: No, the RIF is specifically outside the confines of the CMPA. [00:38:51] Speaker 04: The RIF statute itself says, notwithstanding any other provision of law, and the CMPA regs say they do not apply to RIFs. [00:38:58] Speaker 04: Right, so I thought that's your answer to Judge Millett's question. [00:39:02] Speaker 03: Here's from Thompson III. [00:39:03] Speaker 03: Correcting this error, that was a classification error, the district argues, is not a transfer that triggers any process. [00:39:12] Speaker 03: That's Thompson 344-345. [00:39:14] Speaker 04: Your Honor, I'd have to go back and look at the full paragraph. [00:39:17] Speaker 04: I think we have consistently argued, and I argued in Thompson 3, that he has not satisfied his burden under Mannell because [00:39:28] Speaker 04: Because Mr. King was bound to follow the CMPA. [00:39:32] Speaker 04: We argued Mr. King was bound to follow the CMPA, and to the extent his transfer amounted to a constructive discharge, he had to follow the CMPA. [00:39:41] Speaker 03: He was... Okay, so I'm just reading from our decision in Thompson 3, where you said it was just correcting a classification error and no process was due, even though he had already held that that correction of a classification error was a constructive removal. [00:39:52] Speaker 03: So I'm just a little looking at this. [00:39:53] Speaker 04: I don't know about that isolated sentence. [00:39:56] Speaker 04: Our brief in Thompson 3 is clear. [00:39:58] Speaker 04: that the CMPA, because that's why the court discusses the CMPA, the court said the district's argument, it uses the word persuasive, the district's argument that he had to provide for procedures under the CMPA would be persuasive, but for, then the court went on to consider other considerations, which I think after full briefing and remand on this record, that it's clear the CMPA requires process [00:40:26] Speaker 04: He has, we are in this case because the CMPA created a property interest in his job and he could not lose that job. [00:40:33] Speaker 03: Has someone ever taken a constructive removal case to the OEA or to the CMPA? [00:40:41] Speaker 03: Yes. [00:40:41] Speaker 03: Is it after they're removed? [00:40:42] Speaker 03: Yes. [00:40:43] Speaker 03: So there's nothing that human resources should have stepped in to do to prevent his removal or to give him process before removal. [00:40:50] Speaker 03: Constructive removal always happens afterwards because it's the [00:40:53] Speaker 03: plaintiff that labels it a constructive removal, and usually the employer says, no, you weren't removed. [00:40:59] Speaker 03: I assume Mr. King would have disputed that it was a constructive removal when he was transferred in to this position? [00:41:06] Speaker 03: Reclassified, transferred? [00:41:07] Speaker 04: Yes, that's what he has said throughout this litigation, that the constructive transfer came at the time of the construction termination. [00:41:14] Speaker 03: I'm asking a separate question. [00:41:16] Speaker 03: Did Mr. King agree when he made this reclassification slash transfer that it was a constructive removal? [00:41:25] Speaker 03: At the time he did it, did he think it was a removal? [00:41:29] Speaker 03: Did he agree that it was a removal government? [00:41:31] Speaker 03: Did he understand what he was doing to be a removal government by the CNPA? [00:41:37] Speaker 04: If you listen to the argument in terms of, he said Mr. Saab says in his rebuttal, the RIF is not part of this case. [00:41:44] Speaker 03: No, I'm asking, I'm sorry, I apologize. [00:41:46] Speaker 03: I might be getting people, I was asking Mr. King's view at the time Mr. King made this reclassification decision. [00:41:53] Speaker 03: Did he acknowledge, at least internally, maybe not to Mr. Thompson, that it was a removal that triggered the CMPA? [00:42:03] Speaker 03: That this court has held that it was. [00:42:06] Speaker 03: That's a legal conclusion. [00:42:07] Speaker 04: But I don't know if Mr. King ever acknowledged it. [00:42:11] Speaker 03: And in Thompson III, we talked about Mr. King having, as part of his riff authority, he was moving a lot of people around, generally to protect people from the riff. [00:42:22] Speaker 03: Correct? [00:42:24] Speaker 03: I mean, we said that in the opinion. [00:42:25] Speaker 03: Yes. [00:42:26] Speaker 03: I didn't hear you disputing that in the district court or here. [00:42:29] Speaker 03: And so that transferring people around to protect them from the riff, was that part of his authority under the riff? [00:42:39] Speaker 03: I hadn't heard. [00:42:40] Speaker 03: No, that was not a part of his authority under the riff. [00:42:42] Speaker 03: Have you disputed before the district court or this court that that was part of his authority under the riff? [00:42:46] Speaker 04: The only authority he had under the riff was to designate positions to be eliminated. [00:42:52] Speaker 04: That is the only authority. [00:42:53] Speaker 03: Well, we indicated in raising questions for the district court to consider under Monell that it should consider, apart from the word of the statute, the fact that Mr. King was moving people around, I take that to be transfers, maybe it was reclassifications, to protect them from the riff. [00:43:13] Speaker 03: And I didn't understand that that was part of his authority in implementing the riff, whether it was conferred by the statute or something that he simply [00:43:22] Speaker 03: acquired by practice, that that was something he was doing. [00:43:26] Speaker 03: And you haven't disputed for the district court or this court that he was doing that for other people. [00:43:31] Speaker 03: Have you? [00:43:32] Speaker 04: I don't think we've disputed that. [00:43:37] Speaker 04: But I think if the case I was trying to find the name of is Leavitt. [00:43:43] Speaker 04: Leavitt is the site in Ann Arbor. [00:43:45] Speaker 04: DC Court of Appeals said, [00:43:47] Speaker 04: that if you, in this exact kind of position, factual circumstances. [00:43:52] Speaker 04: It was a RIF case, but the RIF was irregular. [00:43:58] Speaker 04: The person had been moved into the position, or the position had been created for him, and then it had been ripped. [00:44:04] Speaker 04: And the D.C. [00:44:04] Speaker 04: Court of Appeals says there, even though OEA is just, that there's limited review of RIFs, if you make a good faith proffer, [00:44:15] Speaker 04: that the riff was irregular and amounted to a constructive termination rather than the designation of a position. [00:44:22] Speaker 03: I think what they held there was on the particular facts and circumstances of that case, the dismissal without allowing discovery was premature. [00:44:29] Speaker 03: That's all they held. [00:44:32] Speaker 04: Yes, but the allegation was, they didn't decide it on the merits, but the allegation was if you allege [00:44:38] Speaker 04: It's not just that the position I occupied was rep, it's that there was some kind of loose or pretext so that I was constructively terminated, the OEA can consider that. [00:44:53] Speaker 00: that it's at least a non-frivolous argument that allows you to pursue discovery before the OEA. [00:45:01] Speaker 00: They didn't say that that means that reclassification or transfer is governed by the CMPA. [00:45:18] Speaker 03: It was a non-frivolous argument that it was governed, I think is what they found. [00:45:24] Speaker 04: But OEA could say, if this amounted to a constructive transfer, you were entitled to a hearing. [00:45:33] Speaker 00: Well, that raises a question for me because there were hundreds if not thousands of people who were riffed, undoubtedly, during that time period, the 96, 97 time period. [00:45:45] Speaker 00: And undoubtedly, some of them were transferred into or reclassified into a position [00:45:53] Speaker 00: that was subsequently riffed. [00:45:56] Speaker 00: During that time period, what position did the District of Columbia take when any of those, if any of those were challenged before the OEA? [00:46:12] Speaker 00: Did the District of Columbia take the position that reclassification or transfer was [00:46:22] Speaker 00: governed by the CMPA? [00:46:28] Speaker 04: I think the district takes the position that the council created the OEA to unravel illegal personnel actions and trusted OEA to unravel whether these were legitimate rifts or some kind of sham terminations. [00:46:54] Speaker 04: And in Propaganda, the court said, if the government has created an independent board to review personnel mistakes, then that is the policy making. [00:47:06] Speaker 04: It is not the policy making of the individual decision makers who make the mistake. [00:47:12] Speaker 04: I mean, the bottom line here is that Mr. I'm just curious why [00:47:22] Speaker 03: In Thompson 3, after we'd found the Constructive Removal, you weren't arguing that the place to address that improper unlawful reclassification was the CMPA process. [00:47:37] Speaker 04: Well, we definitely argued in this case that any differential process was wrong. [00:47:43] Speaker 03: If there's CMPA protections or if there's process that he was due, then there's a Monell [00:47:50] Speaker 04: But, Yerner, if you have three individual moves, none of which implicate a property interest, but the totality is a constructive transfer, then the CPA applies. [00:47:59] Speaker 04: Constructive removal. [00:48:00] Speaker 04: Constructive removal. [00:48:01] Speaker 04: If you have designated a position to be riffed, he moves Mr. Thompson into that riffed position, and then the riff took place. [00:48:11] Speaker 04: None of those individual actions implicate a property interest. [00:48:15] Speaker 04: He has a property interest protected by due process, in this case, [00:48:18] Speaker 04: because he lost his job. [00:48:21] Speaker 04: If you're going to look at it as a re-classification, designation of the position, and effectuation of the RIF, he has no property interest. [00:48:29] Speaker 05: Why is that? [00:48:30] Speaker 05: I mean, this goes to the question I asked Mr. Saab, which maybe is more appropriately directed to you. [00:48:36] Speaker 05: Why isn't the application of a RIF to someone who has a property interest in their job something that would trigger, at least as applied to such person, a due process? [00:48:49] Speaker 04: The property interest is created by the CMPA. [00:48:52] Speaker 04: The CMPA says you can't be fired without a cause and without a duty here. [00:48:56] Speaker 04: So the property interest for constitutional purposes is created by that state law. [00:49:01] Speaker 04: But the CMPA itself says it doesn't apply to refs. [00:49:05] Speaker 04: And the ref statute at issue here itself says notwithstanding any other provision of law. [00:49:10] Speaker 04: So the ref law takes designating positions outside of the CMPA that creates the property interest. [00:49:18] Speaker 05: But he had a property interest in part because this gets to sort of reality on the ground. [00:49:26] Speaker 05: He had the kind of job that I think a reasonable government professional would think, this isn't going to be riffed, because this is a necessary function. [00:49:35] Speaker 05: Even when we get down to bare bones in financial exigency, this position is going to be here. [00:49:42] Speaker 05: And in fact, it did continue to be there. [00:49:45] Speaker 05: after Mr. Thompson was removed, the security officer position, security systems administrator position. [00:49:54] Speaker 05: So I guess the question is, where and how did that property interest evaporate? [00:50:01] Speaker 05: And I guess you're saying, well, it evaporates as soon as it's encompassed within the RIF. [00:50:09] Speaker 05: Because the RIF is something that is [00:50:14] Speaker 05: The property interest goes up to and does not combat against a riff. [00:50:21] Speaker 05: It combats against firing, it combats against transfer, it combats against demotion, but it doesn't protect against riff. [00:50:31] Speaker 05: Yes, precisely. [00:50:33] Speaker 04: And if you break this case down. [00:50:35] Speaker 03: But if you take someone, I thought we held it in Thompson too, is you take someone who's in a non-riff position. [00:50:40] Speaker 03: There's no argument that his original position was going to be riffed. [00:50:44] Speaker 03: He was in that position. [00:50:45] Speaker 03: He had a property interest in his career service. [00:50:48] Speaker 03: He had a property interest in his job. [00:50:50] Speaker 03: And what triggered the concerns here was that they had this rift going here. [00:50:55] Speaker 03: They had the authority to go. [00:50:56] Speaker 03: And they picked him up, plucked him out of his position that had a protected property interest and threw him in to the rift. [00:51:04] Speaker 03: Want to go up? [00:51:05] Speaker 03: No property interest. [00:51:06] Speaker 03: That's how we help. [00:51:07] Speaker 03: That's not how this works. [00:51:08] Speaker 04: If he was only reffed, if he was only reffed, [00:51:11] Speaker 04: No property interest was implicated. [00:51:14] Speaker 04: If all of these actions amount to a constructive transfer, if Mr. King put these actions together to effectively terminate him, [00:51:36] Speaker 04: That's what implicated the property interest. [00:51:38] Speaker 04: That's why Thompson, too, says there's a property interest. [00:51:40] Speaker 04: That's why we're still here in this case, because he was denied a constitutional property interest. [00:51:44] Speaker 04: If he was just reffed, there was no property interest. [00:51:48] Speaker 03: It's the... That's the point. [00:51:50] Speaker 03: It's that the collective personnel decisions that were manipulated to deprive him of his property interest all happened to be, if those three steps were ones that were [00:52:05] Speaker 03: in their nature put aside the fact that you couldn't shove Mr. Thompson into this program, but in the nature of their actions were the types of things that he had the authority to do, then it seems to me the government doesn't get out of Manel by saying, well, everything he did he had the final independent authority to do, but because it turns out to be illegal as applied to him, he's not the final policymaker. [00:52:35] Speaker 03: I don't think that's how Menell works. [00:52:41] Speaker 03: He was a final policymaker. [00:52:42] Speaker 03: All three steps. [00:52:43] Speaker 04: Menell says that the district has to be responsible for the illegal act, for the constitutional deprivation. [00:52:52] Speaker 04: Mr. King effectuated a constitutional deprivation by effectively terminating him. [00:52:59] Speaker 04: He lost his property interest. [00:53:00] Speaker 03: If someone's a final policymaker and they abuse their authority, [00:53:07] Speaker 03: Yet the state's still liable. [00:53:10] Speaker 03: When a final policymaker abuses their authority, otherwise final policymakers would never be responsible for anything, because as soon as they cross the line of illegality, we go, well, they weren't allowed to do that. [00:53:22] Speaker 03: That seems to be the argument here. [00:53:24] Speaker 04: I go back to the opening quote. [00:53:29] Speaker 04: from Thompson 3, that this is semantics, whether you call it a transfer or reclassification, that in isolation doesn't implicate a property interest or warrant process. [00:53:40] Speaker 04: The totality of the circumstances here deprived him of his property interest in his job. [00:53:45] Speaker 00: Okay, I think we're, at least where I believe we're talking crosswise with each other, is determining whether there's a property interest [00:53:57] Speaker 00: doesn't answer the question as to whether or not he is the final policymaker. [00:54:04] Speaker 00: So in other words, if there were three steps that were taken to effectuate determination, and if we believe that he is the final policymaker as to each of those three steps, [00:54:27] Speaker 00: then, or let me put it this way, if there were no CMPA rights as to each of those three steps individually, is there any authority that you can cite to me from the OEA or from the DC Superior Court, the DC Court of Appeals, or our court [00:54:58] Speaker 00: that says that a constructive termination is governed by the CMPA, even if the individual acts that made up that constructive termination were not. [00:55:22] Speaker 04: The CMPA says that a person cannot be terminated without hearing and notice. [00:55:28] Speaker 00: Here... Determination was the RIF, though. [00:55:34] Speaker 04: But the RIF was legal. [00:55:36] Speaker 04: The RIF was legal. [00:55:37] Speaker 00: And the RIF wasn't governed by the CMPA, right? [00:55:41] Speaker 04: If we were here only as to the RIF, he would not have a due process clause, and we would have won in Thompson 2. [00:55:47] Speaker 04: He would not have a property interest, and we would have won in Thompson 2. [00:55:51] Speaker 04: If only the RIF was at issue, we would have won in Thompson 2. [00:56:00] Speaker 04: The CMPA said that personnel authorities had to follow it. [00:56:06] Speaker 04: The lottery board enacting statute said that the executive director was bound to follow the CMPA. [00:56:14] Speaker 04: He may have labeled this transfer, he may have labeled this to try to dodge the CMPA, but that does not make that the decision of the District of Columbia. [00:56:24] Speaker 04: That makes his decision a rogue decision outside the confines. [00:56:28] Speaker 04: And I just want to say, [00:56:30] Speaker 04: One might feel great sympathy for Mr. Thompson here, who's been fighting this case and now his children for over 20 years. [00:56:39] Speaker 04: I certainly do. [00:56:40] Speaker 04: But we raised the Minnell defense in 1997 in our answer and in every pleading thereafter. [00:56:46] Speaker 04: He made litigation choices to abandon his case to OEA, to not pursue an individual case before against Mr. King. [00:56:53] Speaker 04: Thompson, I think it's one, [00:56:55] Speaker 04: reflects that he named King and then didn't serve him or abandon that. [00:56:59] Speaker 04: He made litigation choices that could have reinstated him to his job years ago. [00:57:05] Speaker 02: So the district of Columbia's position that he could have sued Mr. King individually? [00:57:11] Speaker 02: Yes. [00:57:12] Speaker 02: For actions that he took in his official capacity? [00:57:18] Speaker 04: He might have immunity defenses, but people sue individuals all the time. [00:57:25] Speaker 03: that the government wasn't. [00:57:27] Speaker 04: In Triplett, in Singleton Terrier, where the plaintiff served years in prison following a non-constitutional parole replication, the court said that was not the board's policy, that that was the district's policy, because the district said that the board could not revoke parole without due process. [00:57:45] Speaker 04: So too here, the district has said that individual personnel authorities cannot deprive people of their jobs [00:57:54] Speaker 04: without a hearing and notice. [00:57:56] Speaker 04: And he violated that policy, Mr. King violated that policy here. [00:57:59] Speaker 04: He did not. [00:58:00] Speaker 03: It's in your position, then, that if someone is a final policymaker as to the relevant actions. [00:58:07] Speaker 03: What was the beginning? [00:58:09] Speaker 03: Sorry. [00:58:11] Speaker 03: If someone is a final policymaker as to the relevant actions that harmed somebody, [00:58:18] Speaker 03: If they're sued in their official capacity. [00:58:20] Speaker 03: Can I just finish a sentence? [00:58:22] Speaker 03: If someone is a final policymaker as to the actions that caused a harm, but they were able to cause a harm because they exercised the powers that they have as final policymaker unlawfully, is it your position that Monell absolves the district of responsibility? [00:58:48] Speaker 04: No, it's the district's position that the plaintiff has an alternative route to sue the individual in his individual capacity. [00:58:56] Speaker 03: Well, that's not for this case. [00:58:57] Speaker 03: You haven't argued that here. [00:59:00] Speaker 03: No, I'm saying you could have. [00:59:00] Speaker 03: We're only talking about manel liability here. [00:59:02] Speaker 03: Mr. Thompson could have sued. [00:59:04] Speaker 03: Maybe could, maybe couldn't have, but we're only talking about manel liability. [00:59:06] Speaker 04: But one of the reasons we're here so many years later is he didn't sue Mr. King in his individual capacity, and he abandoned his claim before OEA. [00:59:13] Speaker 05: Wait, I thought you said he wouldn't have a claim before OEA. [00:59:16] Speaker 05: What was he supposed to pursue to OEA? [00:59:20] Speaker 05: Not that OEA is so sad. [00:59:24] Speaker 05: He has no claim for the reclassification that he can bring to OEA and he has no claim for firing in the riff that he could bring to OEA. [00:59:34] Speaker 05: He has no claim that the job into which he was reclassified was designated for the riff. [00:59:45] Speaker 05: What's your position there? [00:59:46] Speaker 04: As I think Mr. Saub conceded today and I think it's record document 125 shows the OEA documents are in the record. [00:59:54] Speaker 04: He argued to OEA that it was a scam, it was a sham riff that he had been illegally transferred into the doomed position and then riffed. [01:00:08] Speaker 04: He made this argument to OEA. [01:00:10] Speaker 04: He made the argument. [01:00:11] Speaker 05: It seems like nobody's seriously disputing that he made that argument, or indeed that it accurately described at some level what happened. [01:00:19] Speaker 05: But I'm interested in your position, because I had thought that you had said, as the position of the district has a legal matter, he has no OEA claim, either according to reclassification or, well, I'm talking about for what happened here. [01:00:36] Speaker 05: And I think that's coherent, at least, that he has no OEA for the reclassification, and he has no OEA for a termination in the ref. [01:00:47] Speaker 05: I thought that was your position, and I don't think you're meaning to change it. [01:00:50] Speaker 04: Taking individually isolated, but if his argument is as it was, that those two things together were a ruse, you know, a scam ref, then under Leavitt and this court's earlier decision in Fitzgerald, [01:01:04] Speaker 04: he can argue to OEA that I wasn't riffed, I was really terminated. [01:01:08] Speaker 04: I wasn't riffed. [01:01:09] Speaker 04: He could have gone to OEA and said, I wasn't riffed, I was really terminated, and hear my claim. [01:01:16] Speaker 04: So just in closing, Mr. King was constrained by the CMPA. [01:01:22] Speaker 04: If he was going to fire someone, he had to provide them a process that complies with constitutional due process. [01:01:30] Speaker 04: And even if you take it down into the individual steps here, it amounted, we're talking semantics, it amounted to a termination. [01:01:37] Speaker 04: He was terminated and Mr. King was bound under the CMPA to give him a hearing and notice before he was terminated. [01:01:47] Speaker 03: Thank you. [01:01:49] Speaker 03: I think Mr. Shull did not have any time left. [01:01:53] Speaker 03: We'll give you two minutes. [01:01:56] Speaker 01: It was very nice to touch, thank you. [01:01:58] Speaker 01: The scenario the defendant describes allows the clever defendant to avoid review. [01:02:10] Speaker 01: Justice Brennan was adamant in Prapatnik that you have to look at the realities of municipal decision making. [01:02:22] Speaker 01: He did not want there to be the kind of discussion that we are having now, which is sort of like when you look at these minuscule details to determine, well, we can avoid liability under this category, and then we avoid liability here, and we avoid liability here. [01:02:39] Speaker 01: The fundamental reality, the real reality on the ground, is that Mr. Thompson had no OEA appeal rights. [01:02:47] Speaker 01: The judge was very clear, not interested. [01:02:51] Speaker 01: Is it possible that the judge was wrong? [01:02:53] Speaker 01: Yeah, of course. [01:02:54] Speaker 01: Anything's possible. [01:02:56] Speaker 01: Mr. Thompson realized that though he had named Mr. King personally as a defendant, that he had no viable claim, because Mr. King was acting in his official capacity. [01:03:08] Speaker 01: And so, or as a government, does he? [01:03:12] Speaker 03: Could he not be sued? [01:03:14] Speaker 01: Well, anybody can be sued, but he would. [01:03:17] Speaker 03: He would not have a viable lawsuit. [01:03:20] Speaker 01: He would not have been a viable claim. [01:03:22] Speaker 03: Why not? [01:03:23] Speaker 03: They say it would have been. [01:03:25] Speaker 01: I don't know that they actually say that it would have been. [01:03:27] Speaker 03: All they said is he might have immunities, but that doesn't mean you don't have a claim. [01:03:33] Speaker 01: There certainly would not have been a... Is there no substitution stat? [01:03:36] Speaker 03: The district does not substitute itself when its officials are sued in their official capacity? [01:03:40] Speaker 01: Yes. [01:03:40] Speaker 01: And there are countless cases where, you know, this court will drop a footnote saying so-and-so was sued, but clearly it's in their official capacity. [01:03:48] Speaker 01: So, you know, we're recognizing it that way. [01:03:53] Speaker 01: Because when you work for the government, the government is going to be responsible. [01:03:59] Speaker 03: If he's sued in his official capacity, would you still have to meet Manel? [01:04:03] Speaker 01: If he were suing his official capacity, it would be identical to suing the agency. [01:04:10] Speaker 01: When you sue somebody in their official capacity, you are suing the agency. [01:04:15] Speaker 01: Mr. Thompson had no rights under the CNPA. [01:04:20] Speaker 01: He didn't. [01:04:24] Speaker 01: He had no rights under the CNPA. [01:04:27] Speaker 01: He knocked at that door. [01:04:30] Speaker 01: By the time he knew what had happened. [01:04:32] Speaker 01: Were you saying he had no rights or he was given no rights? [01:04:34] Speaker 01: I'm saying both. [01:04:36] Speaker 03: Well, that's two different things. [01:04:37] Speaker 01: Yes. [01:04:38] Speaker 03: You can't complain about not being given something you don't have. [01:04:41] Speaker 01: Well, I think as a matter of law, as we've discussed at some length today, he had no actual rights because the actions taken were all RIF related or did not cause him, if taken, if atomized, [01:05:00] Speaker 01: Step two, caused no harm. [01:05:04] Speaker 05: But if he's being caught up in the rift and if the rift itself gives some administrative appeal right, why didn't he pursue that? [01:05:13] Speaker 01: It doesn't. [01:05:14] Speaker 01: There are a couple of, my colleague mentioned some appeal rights, none that are relevant to Mr. Thompson. [01:05:21] Speaker 05: Well, why the caveat on your part? [01:05:26] Speaker 01: Which caveat? [01:05:27] Speaker 05: None that are relevant. [01:05:28] Speaker 01: Oh, I'm afraid I don't remember what that carve out was. [01:05:54] Speaker 05: So doesn't the RIF legislation itself say you can, within 30 days, come bring an administrative challenge? [01:06:03] Speaker 01: Yes. [01:06:03] Speaker 01: 1-625.5. [01:06:08] Speaker 05: And so why wasn't that pursued? [01:06:13] Speaker 01: Well, it was. [01:06:15] Speaker 01: The right [01:06:24] Speaker 01: before OEA was to contest that the separation procedures of subsections D and F were not properly applied. [01:06:35] Speaker 01: The separation procedures in the specific language of D and F were properly applied. [01:06:40] Speaker 01: The problem was that he was in a position that he shouldn't have been in. [01:06:44] Speaker 05: Outside of that. [01:06:45] Speaker 05: So the narrow scope of that just was non-responsive to the situation he faced. [01:06:50] Speaker 05: Correct. [01:06:50] Speaker 05: That's helpful. [01:06:51] Speaker 01: So here, Mr., can I say, he was damned if he did and damned if he didn't. [01:06:57] Speaker 01: He had no remedy other than this suit. [01:07:02] Speaker 01: And the district has found lots of technical reasons for finding that it's not going to be held responsible. [01:07:10] Speaker 01: But at core, what the district did was wrong. [01:07:14] Speaker 01: It happened because of Mr. King's final policy-making authority. [01:07:19] Speaker 01: But for that authority, this never would have happened. [01:07:22] Speaker 01: And therefore, the district should be liable. [01:07:23] Speaker 03: Thank you very much. [01:07:24] Speaker 03: The case is submitted. [01:07:25] Speaker 01: Thank you.