Payne v. District of Columbia Government

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2012 Decided June 7, 2013
No. 11-7116
AUDRICK PAYNE,
APPELLANT
v.
DISTRICT OF COLUMBIA GOVERNMENT, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00163)
David A. Branch argued the cause and filed the briefs for
appellant.
Holly M. Johnson, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With her on the brief were Irvin B. Nathan,
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.
Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
2
Opinion filed by Circuit Judge ROGERS concurring in part
and concurring in the judgment.
SENTELLE, Senior Circuit Judge: Audrick Payne, who was
discharged from his position as an elevator inspector for the
District of Columbia Department of Consumer and Regulatory
Affairs, sued the District and four supervisory employees for
violation of the District of Columbia Whistleblower Protection
Act (“DCWPA”), along with several other theories of liability.
The district court granted judgment in favor of the defendants on
all claims. Appellant now seeks reversal of the district court
judgment as to the whistleblower claims. Because we agree
with the district court that the relevant statute provided no cause
of action against individuals, and that an amendment so
providing was not retroactive, and further agree that Payne has
not established causation between his allegedly protected
activity and his discharge, we affirm the judgment of the district
court.
Background
A. Factual Background
The published opinion of the district court sets forth the
background facts of this litigation in some detail. See Payne v.
District of Columbia, 741 F. Supp. 2d 196 (D.D.C. 2010); see
also Payne v. District of Columbia, 808 F. Supp. 2d 164 (D.D.C.
2011) (denying plaintiff’s motion to amend judgment); Payne v.
District of Columbia, 592 F. Supp. 2d 29 (D.D.C. 2008)
(dismissing other claims in the original complaint). Therefore,
we will not exhaustively revisit that history, but rather will set
forth only sufficient factual background for clarity of analysis.
The District of Columbia Department of Consumer and
Regulatory Affairs (“DCRA”) hired appellant as an elevator
3
inspector in September of 2001. From the beginning of his
tenure, Payne observed that the frequency and quality of
inspections was not, at least in his opinion, up to the standards
required for either safety or regularity. Indeed, in his filings in
the district court and before us, Payne produces instances of
serious and even tragic accidents allegedly attributable to the
deficient inspections he decried for years.
Among the options available to an inspector who has found
a violation is “tak[ing] an elevator out of service.” Payne shut
down “considerably more” elevators than other inspectors. By
Payne’s own account, his supervisors overruled him and put
elevators back in service with a frequency that he described as
“all the time.” This apparently was typical of Payne’s
relationship with higher-ups in the Department. For example, in
his 2003–04 performance evaluation, the rating official
commended his good intention but noted a “tend[ency] to be
regid [sic].” In his 2005–06 evaluation, the rater referred to his
need “to minimize actions that may be seen as being overzealous
instead of thorough.” And as noted, his superiors overruled him
at times when he took elevators out of service and also
reprimanded him for issuing what they saw as overly large fines.
Payne was particularly disturbed by what he saw as
deficiencies and conflicts in a third-party inspection program in
which the Department outsourced some inspection duties to
private contractors. Specifically, Payne noted that a former
Department inspector operating a private consulting business
which was registered as a third-party inspector had improperly
allowed the installation of elevators to commence at a large
apartment complex before the issuance of permits. Payne issued
a stop work order and $21,000 fine. Thereafter, his superiors
overruled him and allowed the third-party inspector to complete
the inspection of the construction. A little over a week later, an
elevator user fell to her death due to a faulty elevator. Payne
4
spoke to the Washington Post about this incident and
specifically the fact that the inspections were conducted by a
third-party inspector whom he named. Although Payne
emphasizes this incident in his filings, the record does not reflect
whether the Department was aware that Payne had spoken to the
Washington Post.
More germane to the issues before us, in February 2005,
Payne gave testimony before a committee of the Council of the
District of Columbia on “the state of elevators in the District of
Columbia.” In his testimony, he attributed the death of a
firefighter to an outdated alarm system and testified more
generally that the District was not devoting adequate resources
to inspection of elevators.
On March 1, 2006, a local television news program, Fox 5
News, telecast a feature on “dangerous elevators.” In its
coverage it referred to “repeated failures in the District’s
elevator inspection process.” Documents bearing Payne’s
handwriting and signature appeared in the telecast. Soon after
the story ran, the Acting Director of the DCRA called a meeting
to discuss the Fox 5 story and a Department administrator told
Payne that when he saw this story, he knew that Payne was
involved.
In March 2006, Payne once more testified before the
District Council committee on the subject of elevator safety. He
testified that conditions were worse than they had been at the
time of his prior appearance. In his deposition in the district
court proceedings, Payne testified that his supervisor was very
upset that his name had been brought up “a number of times” in
Payne’s testimony before the committee, but Payne did not offer
any evidence to support his statement about the supervisor’s
anger.
5
While the above events were unfolding, in addition to
performing his duties as an employee of the Department, Payne
also headed a private commercial business, Payne and
Associates, Inc. (“P.A.I.”), engaged in the elevator inspection
business. See Payne v. District of Columbia, 741 F. Supp. 2d at
204. The Department received complaints from the Apartment
and Office Building Association that Payne was soliciting
elevator inspection work for his private commercial business
while he was on official duty for the District of Columbia.
According to the Vice President of the Association, Payne
“approached several AOBA members, identified himself as a
DCRA elevator inspector, and solicited work for” P.A.I., while
officially on duty. The AOBA official alleged that Association
members were afraid that Payne would retaliate against them by
shutting down their elevators if they did not do business with
him. In August 2005, the Department referred the matter for
investigation to the District of Columbia Office of Inspector
General (“OIG”).
The OIG undertook the requested investigation, which
continued for more than a year. Six witnesses contacted by the
OIG confirmed that Payne had attempted to solicit work for his
private business while conducting inspections for the District of
Columbia. Four witnesses reported that they had personally
observed such solicitations. One of them, Mark Dorsey, an
elevator consultant for EMCOR Facilities Services, a facility
management company providing maintenance and consulting
services for various buildings, reported that Payne had “often
solicited personal business as a third-party inspector” from
Dorsey while Payne was performing inspections for the DCRA.
Dorsey corroborated his statements by producing a “Payne and
Associates” business card, which he stated that he had received
from Payne. This witness also reported that he had witnessed
Payne soliciting personal business from an elevator company
while performing DCRA inspections.
6
A project officer and superintendent for Archstone Smith,
a company operating apartment communities in Washington,
DC, and other cities, Eric Holst and Tim Pagano, also provided
information concerning Payne’s solicitation of private business.
According to the Archstone Smith officials, Payne distributed
his P.A.I. business cards while conducting a reinspection of an
elevator as a DCRA inspector. They related that Payne
discussed several code violations with them. When they advised
Payne that they intended to use a third-party inspector to correct
the violations, he “stated that he would not allow a [third-party]
inspector to conduct the re-inspection because the elevator had
not been inspected since 1996.” Payne displayed both his
DCRA and P.A.I. business cards and advised that he had a third-
party consulting and inspection business. Payne later returned
to conduct a second inspection at the Archstone Smith property
and “again distributed his business cards.”
Stephen Weaver, a former DCRA employee and himself a
third-party inspector, reported that “on at least two occasions,
while conducting inspections for DCRA,” Payne had attempted
to solicit work as a third-party inspector and provided Weaver
with his P.A.I. business card. Two other witnesses who did not
provide first-hand evidence of Payne’s solicitation provided
hearsay to the effect that other members of the business
community had told them of similar conduct by Payne. One
stated that Payne had “solicited several elevator mechanics”
under contract to her company for his business.
On April 14, 2006, the OIG interviewed Payne himself.
Payne acknowledged that he had established Payne and
Associates in 1998, but had not actually begun doing business
until October of 2005. He stated that the only business he
conducted on behalf of his private company was while he was
on annual leave and was outside of the District of Columbia. He
further claimed that he had never solicited personal business
7
while on government duty and denied having provided anyone
with his personal business card except upon request. However,
he did not offer any explanation for the three business cards that
OIG had obtained from the contractors and building managers
who had alleged his abuse of authority. The Office of the
Inspector General issued its final report on the Payne
investigation on November 3, 2006, concluding “that Payne had
solicited work for his personal business as a third-party
inspector while on duty in violation of D.C. Code § 1–618.02.”
Payne v. District of Columbia, 741 F. Supp. 2d at 196, 204.
While the investigation was unfolding, on September 13,
2006, the Department issued a memorandum to all elevator
inspectors stating, “Before sealing an elevator out of service,
you must contact your supervisor for approval.” The
memorandum also listed four other officials to call in the event
that the supervisor could not be contacted. The memorandum
only permitted sealing without prior notice to the higher officials
in the event of “imminent danger.” On October 16, 2006, the
Department issued a notice of suspension to Payne alleging that
on September 27, 2006 and September 28, 2006, he had taken
elevators out of service without notice to his supervisor or the
other officials. In his deposition for this proceeding, Payne
admitted to having taken elevators out of service without calling.
On November 3, 2006, while the proposal to suspend Payne
for violating the elevator sealing policy was pending, the
Inspector General issued the final report finding that Payne had
violated District ethics laws and recommending that the
Department “take appropriate action.” The Director of the
Department issued a letter to Payne noticing his summary
termination on November 9, 2006, citing the ethical and legal
violations set forth in the report of the Inspector General.
8
After his termination, Payne pursued a course of
administrative review and mediation described in the district
court’s opinion. See Payne v. District of Columbia, 741 F.
Supp. 2d at 205. In the end, Linda Argo, Acting Director of the
Department, rejected Payne’s final appeal and ordered his
termination on September 17, 2007.
On January 28, 2008, Payne filed action against the District
of Columbia and four individual officials of the District of
Columbia Department of Consumer and Regulatory Affairs:
Linda Argo, Patrick Canavan, Lisa Morgan, and Nicholas
Majett. In his original complaint, Payne set out nine counts
alleging various theories of liability. In an amended complaint
filed May 9, 2008, he re-alleged nine counts against the same
government and individual defendants. On December 30, 2008,
the district court granted defendants’ motion to dismiss Counts
VI through IX for reasons not material to the present appeal.
Payne v. District of Columbia, 592 F. Supp. 2d 29 (D.D.C.
2008).
The litigation continued in district court with respect to
Counts I through V, alleging claims against the District of
Columbia and the four individuals. Count I alleged a claim
based on the District of Columbia Whistleblowers Protection
Act. Count II alleged a violation of the First Amendment of the
United States Constitution. Counts III through V alleged other
constitutional and civil rights violations, which are no longer
raised in this litigation. On September 29, 2010, the district
court considered and granted the defendants’ motions for
judgment on the pleadings and for summary judgment as to
Counts I through V of the complaint. Thereafter, Payne timely
filed notice of appeal. Payne raises no issue in this appeal with
respect to the judgment in favor of defendants on Counts III
through V.
9
B. Statutory Background
Although Payne is appealing from summary judgment
entered on both the District of Columbia statutory theory and the
First Amendment theory, the principal thrust of his appeal is
directed toward the District of Columbia Whistleblower
Protection Act. That Act, as in effect at the time of Payne’s
employment, provided:
A supervisor shall not threaten to take or take a prohibited
personnel action or otherwise retaliate against an employee
because of the employee’s protected disclosure or because
of an employee’s refusal to comply with an illegal order.
D.C. Code § 1–615.53 (2001). The statute defined “protected
disclosure” as:
any disclosure of information, not specifically prohibited by
statute, by an employee to a supervisor or a public body that
the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the
administration of a public program or the execution of a
public contract;
(D) A violation of a federal, state, or local law, rule, or
regulation, or of a term of a contract between the District
government and a District government contractor which is
not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health
and safety.
D.C. Code § 1–615.52(a)(6). The term “public body” as used in
§ 615.52(a)(6) includes the DC City Council. Id. §
1–615.52(a)(7)(A).
10
Payne contended in the district court and contends before us
that his termination was in retaliation for his disclosure before
the City Council of gross mismanagement and misuse or waste
of public resources by the DCRA. The district court ruled that
Payne’s whistleblower claims could not survive the summary
judgment motion and entered judgment in favor of the
defendants. We agree and affirm the judgment of the district
court.
II. Analysis
We review a district court’s grant of summary judgment de
novo, drawing all reasonable inferences from the evidence in
favor of the nonmoving party. See, e.g., John C. Flood of Va.,
Inc. v. John C. Flood, Inc., 642 F.3d 1105, 1109 (D.C. Cir.
2011). Summary judgment may be granted when there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In
this case, we determine that the district court correctly granted
summary judgment and that the defendants were entitled to
judgment as a matter of law.
A. The Individual Defendants
We will first consider the grant of summary judgment
dismissing the case against the individual defendants because it
is sustainable on a ground not applicable to the judgment in
favor of the District. The DCWPA provides:
(a) An employee aggrieved by a violation of § 1–615.53
may bring a civil action before a court or a jury in the
Superior Court of the District of Columbia seeking relief
and damages, including but not limited to injunction,
reinstatement to the same position held before the
11
prohibited personnel action or to an equivalent position, and
reinstatement of the employee’s seniority rights, restoration
of lost benefits, back pay and interest on back pay,
compensatory damages, and reasonable costs and attorney
fees . . . . A civil action brought pursuant to this section
shall comply with the notice requirements of § 12–309.
D.C. Code § 1–615.54(a) (2001). As the district court noted,
this section does not explicitly state against whom an action
under the DCWPA may be brought. Nonetheless, upon
examination, we conclude, as did the district court, that the
DCWPA in effect at the time of Payne’s bringing of his lawsuit
“does not provide a cause of action against individual”
supervising employees. Payne v. District of Columbia, 741 F.
Supp. 2d at 211.
As the district court observed, “the overall context of the
statute strongly suggests that this provision was intended only to
authorize suits against the District of Columbia.” Id. at 210.
The forms of relief set forth in the statute—injunction,
reinstatement, restitution of benefits, and backpay—could be
recovered only against the employer District of Columbia, not
against the individual supervisors. Further, the statute “requires
compliance with” a notice of claim statute, D.C. Code § 12–309,
governing only the bringing of actions “against the District of
Columbia.” Id. As the notice provision in the DCWPA does not
separately specify application to actions against the District and
its agencies, it is reasonable to conclude, as did the district court,
that the statute contemplated no other actions than those.
Further, the statute as then in effect
place[d] the burden of proof “on the employing District
agency to prove by clear and convincing evidence that the
alleged action would have occurred for legitimate,
12
independent reasons even if the employee had not engaged
in activities protected by this section.”
Payne v. District of Columbia, 741 F. Supp. 2d at 210 (quoting
D.C. Code § 1–615.54(b)). We agree with the district court’s
reasoning that this explicit placement of the burden on “the
employing District agency” evidences that the DCWPA in effect
at the time did “not contemplate that individual supervisors
could be named as defendants.” Id.On appeal, Payne wisely does not argue that the statute in
effect at the time of the events under litigation created a cause
of action against individual defendants. Rather, he relies on an
amendment to the statute passed in 2009, which provided that:
An employee aggrieved by a violation of § 1–615.53 may
bring a civil action against the District, and, in his or her
personal capacity, any District employee, supervisor, or
official having personal involvement in the prohibited
personnel action . . . .
Whistleblower Protection Amendments Act of 2009, § 2(c),
D.C. Code § 1–615.54(a)(1) (2010). Had that amendment been
in effect at the time of Payne’s allegedly retaliatory discharge,
he might have stated a claim for relief against the individuals.
Unfortunately for Payne, it was not in effect. Therefore, Payne
has no claim against the individuals unless the amendment is
retroactive. Again unfortunately for Payne, it is not.
Under District of Columbia law:
As a general rule, statutes are to be construed as having
only a prospective operation, unless there is a clear
legislative showing that they are to be given a retroactive or
retrospective effect.
13
Wolf v. D.C. Rental Accommodations Comm’n, 414 A.2d 878,
880 n.8 (D.C. 1980); see also Payne v. District of Columbia, 741
F. Supp. 2d at 211. Otherwise put: “[R]etroactive applications
of legislation are not to be presumed absent express legislative
language or other clear implication that such retroactivity was
intended.” Redman v. Potomac Place Assocs., LLC, 972 A.2d
316, 319 n.4 (D.C. 2009).
Not only is there no express legislative language or other
clear implication that retroactivity was intended, but also
nothing about the amendment suggests other than the normal
prospective application presumed for legislative acts. Payne
valiantly argues to the contrary, but his argument is unavailing.
He relies upon the proposition that “[u]nless a contrary
legislative intent appears, . . . changes in statutory law applying
only to procedure apply to pending cases.” Appellant’s Brief at
24 (citing Montgomery v. District of Columbia, 598 A.2d 162,
166 (D.C. 1991) (quoting 2 N. Singer, Sutherland Statutory
Construction § 41.09, at 396 (1986))). While we do not reject
that as a basic proposition, it simply has nothing to do with this
case. Payne argues that we must construe section 2(c) as
procedural because the D.C. Council’s committee report on the
2009 Act discussed that section 2(c) under a heading entitled
“Procedural barriers to recovery.” But the committee report
cannot bear the weight Payne places on it. The discussion of
section 2(c) comes at the very end of the section and contains no
indication, other than the heading, that the legislature even
considered whether the change was substantive or procedural.
We have previously discussed the difference in substantive
and procedural statutory changes with specific reference to
retroactivity in LaFontant v. INS, 135 F.3d 158 (D.C. Cir. 1998).
In that case, we offered by way of example that “a statute is
merely procedural in a strict sense” if it affects “say, setting
deadlines for filing and disposition.” Id. at 162 (quoting Lindh
14
v. Murphy, 521 U.S. 320, 327 (1997)) (internal quotation marks
omitted). On the other hand, a “revision[] of prior law to change
standards of proof and persuasion in a way favorable” to one
party over the other goes “beyond ‘mere’ procedure to affect
substantive entitlement to relief.” Id. (quoting Lindh at 327).
The amendment at issue before us goes far beyond the
amendments discussed in LaFontant and Lindh. This
amendment does not just affect substantive entitlement to relief,
it creates such an entitlement. The creation of a new cause of
action is hardly a procedural amendment. It is difficult to
conceive of anything more substantive. In light of that fact, the
committee report nowise constitutes the sort of “clear legislative
showing” required for a substantive amendment to be given
retroactive effect. Wolf, 414 A.2d at 880 n.8; cf. Bhd. of R.R.
Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528–29
(1947) (“[T]he heading of a section cannot limit the plain
meaning of the text”). Therefore, the generality cited by Payne
is irrelevant. The district court rightly ruled that the statute had
no retroactive application. We affirm the summary judgment
granted by the district court.
B. Claims Against the District
We agree with the district court that while Payne may have
pleaded a cause of action against the District under the DCWPA,
the evidence before the court at summary judgment did not
make out a prima facie case, and that therefore, there being no
genuine dispute of material fact, the district court properly
granted summary judgment in favor of the defendants. In order
to recover under the terms of the Act, the plaintiff must first
establish that he has made a “protected disclosure.” A protected
disclosure includes one made to “a public body” evidencing
types of mismanagement, waste, and abuse as set forth in the
Act. D.C. Code § 1–615.52(a)(6). It is not seriously disputed
that Payne has made out those elements of his claim for relief.
15
But that is not the end of the requirements.
To make out a claim under the Act, plaintiff’s evidence
must also support a retaliatory element. That is, he must show
that a supervisor has “take[n], or threaten[ed] to take, a
prohibited personnel action or otherwise retaliate[d] against an
employee because of the employee’s protected disclosure.”
D.C. Code § 1–615.53 (emphasis added).
In analyzing the claim, as we are applying substantive law
of the District of Columbia, “[o]ur duty . . . is to achieve the
same outcome we believe would result if the District of
Columbia Court of Appeals considered the case.” Shaw v.
Marriott Int’l, Inc., 605 F.3d 1039, 1042–43 (D.C. Cir. 2010).
Thus, as in Shaw, our analysis of the applicable District of
Columbia statutes recognizes the District of Columbia Court of
Appeals’s interpretation as binding. See id. at 1043.
In conducting the analysis of the prima facie case under the
DCWPA, we must use the burden-shifting framework
established by McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). See Crawford v. District of Columbia, 891
A.2d 216, 221 (D.C. 2006); Johnson v. District of Columbia,
935 A.2d 1113, 1118 (D.C. 2007). In order to make out a prima
facie case at the summary judgment stage in a whistleblower
case, a plaintiff is required to produce evidence of retaliation
sufficient for a reasonable jury to conclude “that his protected
activity was a contributing factor in the alleged prohibited
personnel action.” Payne v. District of Columbia, 741 F. Supp.
2d at 213. While the establishment of a prima facie case would
shift the burden of proof to the defendant employer, Payne has
not established his prima facie case of a causal connection
between his disclosures to the Council and the action
terminating his employment and, therefore, the burden has not
shifted. While the District has provided substantial evidence of
16
its reasons for terminating Payne, independent of his disclosures,
we need not look to those reasons as Payne has not made it past
the prima facie hurdle.
As the district court aptly declared, Payne “has produced no
direct evidence that DCRA’s decisions were motivated by
Payne’s testimony.” Id. Of course this is unsurprising, and it is
indeed common that causation elements dependent upon the
intent of an actor would be proven by circumstantial rather than
direct evidence. Payne’s difficulty is that he has produced no
circumstantial evidence of causation either. Payne’s proffered
evidentiary theory is that the “temporal proximity” between the
protected disclosure and the termination is circumstantial
evidence of causation. While it is true that “temporal
proximity” can provide circumstantial evidence of causation,
there is no temporal proximity in the evidence in this case.
The gap between the protected activity and the alleged
retaliation is approximately eight months. The district court
rightly rejected this theory. As the district court noted, in
Johnson v. District of Columbia, 935 A.2d at 1120, the DC
Court of Appeals rejected a “four-month lapse of time as proof
of a causal connection between the protected disclosures and the
adverse actions.” We conclude that the district court’s decision
correctly follows District of Columbia precedent. Once the time
between a protected disclosure and a negative employment
action has stretched to two-thirds of a year, there is no “temporal
proximity” that supports a causal connection between the two,
nothing else appearing. Here, nothing else pertinent appears.
All Payne really offers is evidence that he made a protected
disclosure and that at a later time he suffered a termination. The
fact that one event precedes another does not in itself evidence
causation.
17
C. The First Amendment Claim
Although Payne’s complaint asserted a claim under the First
Amendment, we cannot find error in the district court’s grant of
summary judgment, as Payne has forfeited any such claim on
appeal. We have long held that this court does not normally
consider “points not asserted with sufficient precision to indicate
distinctly the party’s thesis.” Miller v. Avirom, 384 F.2d 319,
321–22 (D.C. Cir. 1967). Payne has not asserted his First
Amendment claim before us.
In his principal brief, there are three references to the First
Amendment. The first reference, however, is not in the
argument section of the brief at all, but only in his statement of
issues and even there, the reference is subsumed in a single
sentence describing his claims in the district court. See
Appellant’s Brief at 1. Similarly, the second reference is not
part of his argument either, but is only an inclusion of the First
Amendment in a list of “statutes” set forth at the beginning of
his brief. See id. at 10.
Only the third reference to the First Amendment is even
contained in the argument portion of his brief, and that reference
is not actually part of the argument, but only of a heading
reading, “The District Court erred in finding Payne failed to
establish a prima facie case of retaliation under the DCWPA or
the First Amendment.” Id. at 26. There is no development by
Payne of his alleged First Amendment claims, and thus, we must
conclude that he has forfeited them. In so concluding, we note
that when appellee raised this forfeiture in its responding brief,
Payne’s reply brief takes issues with the proposition, but still
can cite no reference to his original brief that develops the
theory as it must to warrant our consideration.
18
Conclusion
For the reasons set forth above, we affirm the district
court’s grant of summary judgment.
ROGERS, Circuit Judge, concurring in part and concurring
in the judgment. On appeal, Audrick Payne contends that the
district court erred in granting judgment on his claims against
four individual District government employees because an
amendment enacted in 2009 to the D.C. Whistleblower
Protection Act, D.C. Code § 1-615.54(a) (2001), was retroactive.
See Appellant’s Br. 25-26. As the court acknowledges, Op. at
12, Payne does not argue on appeal that the statute, prior to the
2009 amendment, authorized claims against individual
employees. See Appellant’s Br. at 24. He has therefore waived
any such claim. See Evans v. Sebelius, No. 11-5120, 2013 WL
2122072, at *3 (D.C. Cir. May 17, 2013) (citing Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 1-098 n.4 (D.C. Cir. 2003));
New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005).
Consequently, this court has no occasion to decide whether D.C.
Code § 1-615.54(a), prior to the 2009 amendment, allowed suits
against individual District government employees, and the
court’s discussion of this question of District of Columbia law,
Op. at 11-12, is dictum, which this court has long recognized is
of no precedential value, see Gersman v. Grp. Health Ass’n,
Inc., 975 F.2d 886, 897 (D.C. Cir. 1992); Noel v. Olds, 138 F.2d
581, 586 (D.C. Cir. 1943); cf. Banks v. Chesapeake & Potomac
Tel. Co., 802 F.2d 1416, 1427 (D.C. Cir. 1986).
Otherwise, I concur in holding that, under District of
Columbia, law, the 2009 amendment to D.C. Code § 1-615.54(a)
(2001) is not retroactive in the absence of some clear indication
that the Council of the District of Columbia intended the
amendment to operate retroactively. See Op. at 13. I also
concur in affirming the grant of summary judgment on Payne’s
claims against the District of Columbia. See id. at 14-18.