Campbell v. Dist. of Columbia ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2017 Decided June 29, 2018
No. 16-7077
JENNIFER B. CAMPBELL,
APPELLEE
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
APPELLANT
WAYNE TURNAGE, IN HIS OFFICIAL CAPACITY AS DIRECTOR,
DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH CARE
FINANCE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01769)
Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellant. With her on the briefs were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren
L. AliKhan, Deputy Solicitor General.
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David C. Codell argued the cause for appellee. On the brief
were Alan Lescht and Sara N. McDonough. Rani V. Rolston
and Susan L. Kruger entered appearances.
Before: GRIFFITH and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Jennifer Campbell worked as a
healthcare executive for the District of Columbia until she was
fired based on accusations that she had improperly influenced
the bidding process for the District’s healthcare contracts.
Campbell sued the District, alleging it had violated her Fifth
Amendment due-process rights by leaking these accusations to
the press and denying her an opportunity to refute them. A jury
returned a verdict for Campbell on one of her due-process
claims, and the district court refused to set it aside. The District
appeals that decision, but we affirm the judgment of the district
court.
I
A
In 2010, the District’s Department of Health Care Finance
(“Department”) formed the Health Care Reform and
Innovation Administration (“Administration”) to establish the
health-insurance exchange the District decided to create in
response to the enactment of the Patient Protection and
Affordable Care Act. The Administration divided this project
into a planning phase and an implementation phase. Through a
competitive bidding process, the Administration selected
contractors to carry out the work of each phase. The contract
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for planning was worth approximately $1M. The contract for
implementing those plans was worth almost $75M.
In 2011, Jennifer Campbell became the director of the
Administration, and in 2012, she was promoted to chief
operating officer for the entire Department. She had worked at
the Department since 2008, and prior to that she had held
several high-level positions in the healthcare industry.
In 2012, the owner of the company that won the contract
for the planning phase, Compass Solutions, contacted a former
Department employee and reported that Campbell was steering
contracts to certain contractors in violation of normal bidding
procedures. This information was relayed to Department
director Wayne Turnage around June 2, though the record is
unclear on the precise date. Turnage spoke with the owner of
Compass Solutions, who offered “a litany of allegations”
against Campbell supported by emails and text messages. The
owner also recommended Turnage speak with CGI
Technologies and Solutions (“CGI”), a company that had
withdrawn from bidding for the implementation contract.
Turnage did and heard from a CGI executive that Campbell had
contacted CGI, unsolicited, and urged the company to partner
its bid with a politically connected contractor named Darryl
Wiggins. The executive said she had “never been approached
that way by a government entity involved in procurement.”
After seeking the advice of its general counsel, CGI decided to
“forgo any business with the District.”
On June 3, 2012, Turnage emailed his chief of staff and
the Mayor’s office to inform them of the allegations against
Campbell and his plan to investigate. Turnage also told the
director of human resources that he planned to place Campbell
on administrative leave and would most likely fire her. The
following day, the Department’s human resources office put
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Campbell on administrative leave but refused to answer her
questions about the specific allegations lodged against her.
Later that day, Campbell emailed Turnage’s chief of staff and
asked for an “opportunity to defend [her] professional
reputation and more importantly [her] integrity.” But Campbell
never received an opportunity to refute the allegations.
Around June 7, the Mayor’s staff allowed a reporter from
the Washington City Paper to review Turnage’s emails relating
to the investigation. When the reporter informed Turnage a few
days later that he had the relevant emails about Campbell,
Turnage sent him several emails to provide additional
background on the investigation.
The following morning, the Washington City Paper
published a story under the headline “Health Care Finance
COO Fired over Contract Steering Allegations.” The article
described the allegations against Campbell, relying in large
measure on Turnage’s emails. Reading the article was the first
time Campbell learned the specific allegations against her. She
was terminated later that day. Turnage then shared the emails
with the Washington Post, which published a story under the
headline “D.C. Official Is Fired over Contract Allegations.”
B
In October 2012, Campbell sued the District under 42
U.S.C. § 1983, alleging, among other claims, that the District
violated her Fifth Amendment due-process rights by
unlawfully terminating her employment and leaking untrue
allegations about her to the press, all without due process.
Campbell was unemployed when she first brought suit, and
only secured a full-time job within her chosen field in July
2014 while the lawsuit was ongoing. Before that she had been
5
unemployed for a little over two years since the time of her
firing with only a few temporary jobs in the interim.
Campbell pursued two due-process claims: a “reputation-
plus” claim and a “stigma-plus” claim. A plaintiff makes out a
reputation-plus claim when the government takes certain
adverse actions and defames the plaintiff, which occurred,
Campbell argues, when the District not only fired her, but then
leaked to the press defamatory information. See O’Donnell v.
Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998). A plaintiff makes
out a stigma-plus claim when the government takes certain
adverse actions and those actions create “a stigma or other
disability that foreclosed [the plaintiff’s] freedom to take
advantage of other employment opportunities,” which took
place, Campbell contends, when the District’s actions against
her precluded her from working in her chosen field. Id.
(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
573 (1972)).
The District filed motions to dismiss and for summary
judgment, but the district court allowed Campbell to proceed
with both of her due-process claims. Campbell’s case
proceeded to a five-day jury trial. During the trial, the District
unsuccessfully moved several times for judgment as a matter
of law on Campbell’s reputation-plus claim and her stigma-
plus claim under Federal Rule of Civil Procedure 50(a). That
rule authorizes a court to enter judgment for a party when “a
reasonable jury would not have a legally sufficient evidentiary
basis to find” for the other party on that issue. * As relevant for
*
Rule 50(a) provides:
(1) In General. If a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury would not
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this appeal, the District’s Rule 50(a) motions advanced two
central arguments for rejecting Campbell’s stigma-plus claim:
(1) the harm to Campbell did not foreclose her from working
in her profession because she retained a few temporary jobs
after her termination; and (2) two years of unemployment are
categorically insufficient to establish that Campbell was
foreclosed from her field. The district court denied the
District’s motions and submitted the case to the jury, which
returned a verdict for the District on the reputation-plus claim,
but for Campbell on the stigma-plus claim.
After the jury returned its verdict, the District moved under
Rule 50(b) to renew its motion for judgment as a matter of law
on the stigma-plus claim. Rule 50(b) allows a party to renew
its earlier Rule 50(a) arguments after entry of the judgment. But
in the District’s postverdict Rule 50(b) motion it raised a new
argument that it did not make in its earlier Rule 50(a) motions.
The District argued that Campbell had failed to present
evidence that her termination itself caused the stigma. Without
such evidence, the District claimed that Campbell’s alleged
stigma actually flowed from the District’s speech (the press
leaks), not its action (the termination). And because
Campbell’s claim was about speech, the District argued it was
really a disguised reputation-plus claim that was trying to
have a legally sufficient evidentiary basis to find for the party
on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against
the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable
finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be
made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.
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establish defamation. The district court rejected this argument
on the merits, concluding that Campbell need not show that her
termination was the sole cause of the stigma that she suffered;
instead, she need only show that the stigma “occurred in
conjunction with, or flowed from” her termination. Campbell
v. District of Columbia, No. CV 12-1769 (RC), 2016 WL
3023977, at *3-4 (D.D.C. May 25, 2016) (citing O’Donnell,
148 F.3d at 1141).
The District’s postverdict Rule 50(b) motion also repeated
its argument that Campbell was not foreclosed from working
in her chosen field because she had found temporary jobs after
her termination and was fully reemployed within two years.
The district court rejected this argument, too, incorporating by
reference an earlier ruling in which it had detailed Campbell’s
difficulty finding employment and the lack of authority
supporting the District’s proposed two-year rule. The District
timely appealed.
II
The district court had jurisdiction over Campbell’s suit
under 28 U.S.C. § 1331, and we have jurisdiction pursuant to
28 U.S.C. § 1291. We review de novo a district court’s denial
of a motion for judgment as a matter of law. See Muldrow ex
rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 165
(D.C. Cir. 2007). “We do not, however, lightly disturb a jury
verdict. Judgment as a matter of law is appropriate only if the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not have reached a verdict in plaintiff’s favor.” Id.
(quoting McGill v. Muñoz, 203 F.3d 843, 845 (D.C. Cir. 2000)).
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III
A
On appeal the District primarily advances one argument:
Campbell’s stigma-plus claim should fail as a matter of law
because it was based on government speech, not government
action, and therefore it was merely a disguised reputation-plus
claim. Because the jury rejected the reputation-plus claim, the
District argues, what Campbell styles as a stigma-plus claim—
but which is really a reputation-plus claim—must fail as well.
We refer to this as the District’s “speech argument.” We need
not resolve this argument, however, because the District did not
include it in its Rule 50(a) motions, and thus failed to preserve
it for appeal.
The District moved several times for judgment as a matter
of law pursuant to Rule 50(a), but none of those motions
advanced the speech argument. The District raised that
argument for the first time in its postverdict Rule 50(b) motion;
however, Rule 50(b) permits only the “renewing” of arguments
made in prior Rule 50(a) motions. See Fed. R. Civ. P. 50(b);
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (“A
motion under Rule 50(b) is not allowed unless the movant
sought relief on similar grounds under Rule 50(a) before the
case was submitted to the jury.”). See generally Unitherm Food
Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006).
During trial the District moved under Rule 50(a) in a series
of colloquies. The first time followed Campbell’s presentation
of her case-in-chief. There, the District repeated its summary-
judgment arguments that Campbell’s reputational harm did not
foreclose her from working in her profession because she
retained temporary work, and because two years of
unemployment were categorically insufficient to establish that
9
Campbell was foreclosed from her profession. The district
court denied that motion. Twice the next day the District made
the same arguments under Rule 50(a), both before and after the
parties rested their cases. The court took the motions under
advisement.
The speech argument was nowhere to be found in any of
these motions. The District never argued that Campbell
presented insufficient evidence that her stigma was caused by
the District’s action (the termination) and not the District’s
speech (the press leaks). Nor did it argue Campbell’s stigma-
plus claim was really a disguised reputation-plus claim. Only
after the court entered judgment for Campbell on the stigma-
plus claim did the District file a motion under Rule 50(b) that
raised the speech argument for the first time.
The District attempts to sidestep its Rule 50 defect with
several arguments. The District claims it preserved the speech
argument for appeal when it argued at trial that Campbell
offered insufficient evidence to establish “the type of . . .
stigma that’s envisioned by this constitutional tort.” However,
a few sentences of context from the District’s courtroom
statements reveal otherwise:
What we have, you know, again, the issue here is that the
plaintiff has not shown that she has the type of disability
that is—or stigma that’s envisioned by this constitutional
tort. And, you know, it is the equivalence of losing your
bar license so you can never practice law again. Losing
your security clearance so you can never work in the
security field again. And within two years, the plaintiff was
fully employed within her chosen field. During the time
that she was unemployed . . . . she did [a number of]
professional activities during the gap there. And some of
those were paid.
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The District did not advance the speech argument here. Instead,
it argued, as it had been arguing all along, that Campbell’s
reputational harm did not foreclose her from working in her
profession because she had retained temporary work after her
termination and because two years of unemployment are
categorically insufficient to constitute a stigma-based liberty
deprivation.
Even without the context of the courtroom colloquy, the
District’s preservation argument would fail. A vague statement
about a “type” of claim does not preserve all possible
arguments marginally related to that claim. If it were otherwise,
Rule 50(b)’s limitation to “renewing” Rule 50(a) arguments
would have little meaning. Counsel could insert broad
language in a Rule 50(a) motion and then use that language to
advance novel arguments after entry of the judgment. This
would undermine a key function of Rule 50, which is to provide
notice of legal arguments and prevent counsel from
sandbagging an opposing party by waiting until after entry of
the judgment to raise a new argument that requires new
evidence to be rebutted. See Teneyck v. Omni Shoreham Hotel,
356 F.3d 1139, 1149 (D.C. Cir. 2004) (“[A] Rule 50(a) motion
gives the court and the nonmoving party notice of any
deficiencies in the nonmoving party’s case at a time when such
deficiencies can still be corrected.”); see also McGinnis v. Am.
Home Mortg. Servicing, Inc., 817 F.3d 1241, 1260-61 (11th
Cir. 2016).
The District claims that, even if it failed to meet the
technical requirements of Rule 50, it nonetheless satisfied the
“purpose” of the Rule because Campbell did not need “notice”
of the speech argument. According to the District, Campbell
did not need notice because the “parties’ dispute is a legal one,”
not factual, and therefore Campbell was not deprived of an
opportunity to present evidence to rebut the speech argument.
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See Reply Br. 19 & n.4 (citing Kladis v. Brezek, 823 F.2d 1014,
1017 (7th Cir. 1987)). We need not even address whether this
is a credible Rule 50 argument, however, because the District’s
dispute with Campbell is not purely legal. The District itself
argued that Campbell “offered no evidence suggesting that her
termination, standing apart from the District’s release of
Turnage’s e-mails to the press, would have created a stigma.”
District Br. 41 (emphasis added) (internal quotation marks
omitted). Had the District included the speech argument in its
Rule 50(a) motions, Campbell would have had an opportunity
to respond.
The District did not put Campbell on notice of its speech
argument prior to its Rule 50(b) motion, nor does it seem the
District seriously considered that argument during trial. For
example, the District failed to object to the jury instructions,
which were flatly inconsistent with the speech argument. The
instructions directed the jury to return a verdict for Campbell
on the stigma-plus claim if she proved “that [1] the District’s
release of emails to the press and termination of her
employment left a stigma on her [2] by having the broad effect
of largely precluding her from pursuing her chosen career.”
J.A. 116 (emphasis added). In other words, the jury instructions
identified the relevant government action to include the
District’s release of emails—what the District now calls its
“speech.” If the District had been advancing the speech
argument, one might expect the District to object to these
instructions because they allow the jury to find a stigma-plus
claim based on the District’s termination of Campbell in
conjunction with its “speech.” The District’s failure to object
further suggests that it was not advancing the speech argument
during the trial.
The District also claims it included the speech argument in
its Rule 50(a) motions because it “moved for a directed verdict
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on [Campbell’s] ‘stigma or foreclosure’ theory based on
insufficiency of the evidence.” But that simply repeats the
definition of a Rule 50(a) motion. By definition, judgment as a
matter of law is appropriate only when there is insufficient
evidence for an adverse judgment. See Fed. R. Civ. P. 50(a);
see also 9B Arthur R. Miller, Federal Practice and Procedure
§ 2531 Standard Distinguished from Other Procedures—
New Trial (3d ed. 2015).
The District failed to preserve its speech argument, and
such a failure generally precludes appellate review. See Liff v.
Office of Inspector Gen. for U.S. Dep’t of Labor, 881 F.3d 912,
919 (D.C. Cir. 2018) (“It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
upon below.” (quoting Singleton v. Wulff, 428 U.S. 106, 120
(1976))). Although we have discretion to address issues raised
for the first time on appeal, we generally exercise this
discretion only in “exceptional cases or particular
circumstances,” such as when a case presents “a novel,
important, and recurring question of federal law, or where the
new argument relates to a threshold question such as the clear
inapplicability of a statute.” Id. (internal quotation marks
omitted). The District has identified no exceptional
circumstances here, so we decline to consider its speech
argument.
B
In addition to the speech argument, the District repeats its
Rule 50(a) argument that Campbell was not foreclosed from
working in her chosen field because she found full-time
employment within two years of her termination. According to
the District, two years of unemployment are never sufficient to
establish that a plaintiff has been deprived of her liberty interest
13
in pursuing a chosen profession. The district court rejected this
argument and so do we.
The government violates an individual’s constitutional
due-process rights if it deprives her of a liberty or property
interest without providing sufficient procedural protections.
See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524,
538 (D.C. Cir. 2015). One of the liberty interests protected by
the Fifth Amendment is the right to “follow a chosen profession
free from unreasonable governmental interference.” Id.
(quoting Greene v. McElroy, 360 U.S. 474, 492 (1959)). A
plaintiff can show a deprivation of that liberty interest under
the stigma-plus theory when the government takes certain
adverse actions and those actions foreclose her freedom to
pursue a chosen profession. See O’Donnell, 148 F.3d at 1140.
Our precedents recognize two ways for a plaintiff to
establish that she has been foreclosed from her profession.
First, she may show that the government’s adverse action
“formally or automatically excludes” her from some category
of work, such as with debarment. Kartseva v. Dep’t of State, 37
F.3d 1524, 1528 (D.C. Cir. 1994). Second, even when the
government’s action does not have the “binding effect” of a
formal exclusion, it may still implicate a liberty interest if it has
“the broad effect of largely precluding [the plaintiff] from
pursuing her chosen career.” O’Donnell, 148 F.3d at 1141
(quoting Kartseva, 37 F.3d at 1528). Campbell pursued this
route.
The district court rejected the District’s categorical two-
year argument several times, most extensively when denying
summary judgment. There, the court noted that during
Campbell’s two years of unemployment she had applied to
over thirty positions and secured only temporary jobs, all of
which a reasonable jury could find were outside her chosen
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field. In addition, a “vocational rehabilitation counselor”
testified that Campbell’s difficulty finding work was due to the
negative publicity surrounding her termination. Moreover,
Campbell submitted evidence that at least one prospective
employer was dissuaded from hiring her because of the news
coverage of the allegations against her. Based on this evidence,
the district court concluded that a reasonable jury could
determine that the District’s actions had the “broad effect of
largely precluding [Campbell] from pursuing her chosen
career.” Campbell v. District of Columbia, 126 F. Supp. 3d 141,
153 (D.D.C. 2015) (quoting O’Donnell, 148 F.3d at 1141). At
trial, the jury heard evidence to the same effect, largely through
Campbell’s testimony.
Before the district court, the District cited no binding or
persuasive authority to support its proposed two-year rule, and
it continues to cite no authority on appeal. Instead, the District
relies on citations that simply describe the foreclosure standard
as demanding. See, e.g., O’Donnell, 148 F.3d at 1141 (stating
that the government’s adverse action must have “the effect of
seriously affecting, if not destroying a plaintiff’s ability to
pursue his chosen profession, or substantially reducing the
value of his human capital” (internal quotation marks
omitted)); see also Taylor v. Resolution Tr. Corp., 56 F.3d
1497, 1506-07 (D.C. Cir. 1995) (referring to the standard as
“high” and noting that the government’s adverse action must
“substantially reduce the value of [the plaintiff’s] human
capital, as it would if [the plaintiff’s] skills were highly
specialized and rendered largely unmarketable as a result of the
agency’s acts”). But none of these cases support a categorical
rule that two years of unemployment cannot satisfy the
foreclosure element. To the contrary, some precedent suggests
that less time than two years may suffice to show a liberty
deprivation. Cf. Wisconsin v. Constantineau, 400 U.S. 433,
435, 437 (1971) (holding that a police notice posted in local
15
liquor stores barring sales or gifts of liquor to Constantineau
“for one year” imposed a “badge of infamy” and required
procedural protections).
The District fails to provide any compelling reason to
adopt a categorical two-year rule. Even assuming that a
categorical rule were appropriate, why should it be set at two
years instead of one, three, or five years? The District provides
no explanation. If the government terminates an employee and
ruins her professional reputation without due process, how long
must she wait before bringing her claim? Again, the District
provides no response.
Our precedents do not mandate a rigid minimum-duration
rule governing how long a former government employee must
be unemployed before she can claim that the government’s
actions had the “broad effect of largely precluding [her] from
pursuing her chosen career.” O’Donnell, 148 F.3d at 1141.
Because the District has not persuaded us that the Constitution
requires such a fixed line, nor provided guidance on how such
a line could be drawn, we do not draw one today.
The foreclosure element of a stigma-plus claim affords a
level of discretion to juries. Here, the jury weighed the
evidence and determined that Campbell satisfied the standard.
Perhaps a reasonable jury might have found otherwise, but this
jury’s verdict was not wrong as a matter of law. See Muldrow,
493 F.3d at 165.
IV
We affirm the district court’s order denying the District’s
motion for judgment as a matter of law.
So ordered.