O. Rogeriee Thompson - CONFIRMED

United States Court of Appeals for the First Circuit

President Obama has nominated Rhode Island Superior Court Judge O. Rogeriee Thompson to replace Senior Judge Bruce M. Selya on the First Circuit Court of Appeals. If confirmed, Judge Thompson will be the first African American and the second woman to serve on the First Circuit.

Judge Thompson, 58, grew up in South Carolina. Her great-grandfather owned a plantation and bought her great-grandmother at a slave auction. They later fell in love and started a family. Judge Thompson attended Pembroke College, the female college of Brown University, and graduated from Brown after the two schools merged. She graduated from Boston University Law School. Following law school, Judge Thompson returned to Rhode Island, first working as an attorney at Rhode Island Legal Services and later opening a law firm in South Providence. In 1988, Judge Thompson was the first African-American woman named to the state District Court, and in 1997 she was appointed to Superior Court.

While serving on the bench, she continues to sit on the boards of many organizations, including the Nellie Mae Education Foundation, an organization advancing higher education; the Rhode Island Children's Crusade for Higher Education, a youth-mentoring program; and Dorcas Place, an adult literacy and learning center. Thompson has also received many awards during her career including the Ada Sawyer award from the Rhode Island Women's Bar Association, given to those advancing the status of women throughout the state and legal community; NAACP's Judicial Achievement Award; and Brown University named her among the "100 Most Distinguished Alumni of the Century." Judge Thompson is married to U.S. District Court Judge William C. Clifton; they have three children.

The jurisdiction of the courts on which Judge Thompson has sat is limited, and thus her judicial record is relatively slim compared to other judicial nominees for the federal bench.¹ In her more than 20 years on the bench, Judge Thompson has authored fewer than 100 published opinions. The vast majority of these decisions involve zoning and local land use regulations. See, e.g, Washington Village Country Club v. Island Green Golf, LLC, No. KC-05-055 (R.I. Super. Aug. 21, 2007) (summary judgment resolved a dispute about easements between a condominium association and the owner of a gold course). Her decisions display a respect for the rule of law, a logical and coherent interpretation of laws and application of controlling precedents, and a sensitivity toward the real-life experience of the parties before her. For example, in Bellucci v. Avedesian, 2006 R.I. Super. LEXIS 158 (2006), the court considered the issue of whether a person becomes eligible for disability benefits at the time she becomes disabled or at the time of receipt of Social Security benefits. Recognizing that the process for applying for social security benefits can take several years, Judge Thompson determined that the employee becomes eligible for disability benefits at the time of disability. And in the appeal In re Estate of Downes, No. WP-07-0503 (R.I. Super. May 23,2008), Judge Thompson ruled that a mentally incapacitated woman, although considered legally incompetent to vote or perform certain other civic duties under Rhode Island law, was capable of being the sole heir to her brother's estate.

Thompson has issued only three widely available decisions in criminal cases, and she ruled against the defendant in all three cases, primarily because of her finding that the alleged constitutional violations were not serious enough to change the outcome of the conviction. See Rhode Island v. Motyka, 2001 R.I. Super. LEXIS 3 (2001) (following state supreme court precedent, denying defendant's motion to suppress what he claimed was novel DNA evidence but Thompson deemed to be ordinary scientific evidence); see also Rhode Island v. Briggs, 2003 R.I. Super. LEXIS 12 (2003) (denying defendant's request for new trial after determining newly discovered evidence was not material and had no reasonable chance to change outcome of the proceeding).

In one land use opinion, Woodland Manor, III Associates v. Reisma, 2003 R.I. Super, LEXIS 35 (2003), Thompson issued a lengthy ruling on a takings claim under the Fifth Amendment of the U.S. Constitution, finding a regulatory takings had occurred and awarding plaintiff just compensation. Twelve years after the government granted a permit for a construction project and the developer began a long-term, multimillion dollar project, the environmental agency changed its mind about an earlier wetlands regulation determination and now required the plaintiff, the current landowner, to submit a new wetlands application. On review, Judge Thompson determined that the permit would almost certainly be denied, and she held that that the plaintiff had standing to pursue relief. She awarded plaintiff the rental value of the land for the period of the taking, together with out-of-pocket costs and prejudgment interest, though she refused to engage in speculative fact-finding and determine an award for lost profits.

Thompson has several access to justice rulings. Most notably, in a tort suit involving a fatal airplane runway crash, Judge Thompson concluded that the statutory cap on punitive damages did not apply in this case to the airport co-defendant. Coleman v. Windham Aviation Inc., 2006 R.I. Super. LEXIS 143 (2006). In questions of standing, she has taken a balanced approach in ensuring parties' access to the courts. See N & M Properties, LLC v. The Town of West Warwick, 2007 R.I. Super. LEXIS 63 (2007) (dismissing landowner's declaratory action trying to prevent the town from selling an adjacent lot to a developer); but see Chen v. Subaru of America, 2008 R.I. Super. LEXIS 103 (2009) (sustaining claim under Deceptive Trade Practices Act finding that under statute a plaintiff need only show that he is a consumer and that the defendant is a seller).

Judge Thompson has ruled on a number of labor related cases. In those involving agency decisions or arbitrations, she tends to be deferential to agencies' findings and arbitrators' decisions. Daniels v. Andrukiewicz, 2002 R.I. Super LEXIS 175 (2002) (upholding an administrative hearing decision terminating a police officer; Rhode Island Probation and Parole Ass'n v. Rhode Island, 2004 R.I. Super. LEXIS 95 (2004) (upholding arbitrator's interpretation of the Collective Bargaining Agreement in a dispute about the state's ability to hire temporary employees).

In addition, in Abad v. City of Providence, 2004 R.I. Super. LEXIS 174 (2004); 2005 R.I. Super. LEXIS 64 (2005), Judge Thompson reviewed whether the City of Providence could unilaterally reduce retired police and firefighters' cost of living adjustment. The city argued that plaintiffs could only bring their claims before the state labor relations board or in mandatory arbitration. Yet, Thompson ruled that because they were retirees rather than current employees, the retired firefighters and police could proceed in state court. And, in the absence of an enforceable collective bargaining agreement, the city was bound by the terms of the ordinance in effect at the time of the plaintiffs' retirement and could not retroactively reduce the retirees' cost of living adjustment benefits.

In Macquattie v. Malafronte, 1991 R.I. Super. LEXIS 79 (1999), a group of terminated night custodians brought a hybrid claim against their employer, a school, as well as the union alleging unfair labor practices and violation of the duty of fair representation. Defendants argued that the claim should be dismissed because plaintiffs failed to exhaust their administrative remedies at the State Labor Relations Board. Thompson allowed the claim to go forward. Ultimately, however, she dismissed the claim on summary judgment, finding that plaintiffs had failed to produce evidence against the school, or that the union arbitrarily failed to pursue plaintiffs' grievance.

In cases addressing the issue of due process rights in an administrative proceeding, Judge Thompson has taken a fair, measured approach. On one occasion, she found that the city violated a person's rights by failing to provide adequate notice. In Sjogren v. City of Warwick Board of Public Safety, 2006 R.I. Super. LEXIS 173 (2006), the board of public safety conducted a hearing in which the plaintiff did not attend and found against him. The Court remanded the case because the board's claim that it called the plaintiff's lawyer's secretary before the hearing, but could not identify the person with whom he spoke, did not constitute adequate notice for purposes of due process. But see Daly v. Rhode Island Board of Regents, 2008 R.I. Super. LEXIS 8 (2008) (denying teacher's due process challenge to termination, finding that the letter from the superintendent informing employee of decision to suspend employment and reasons for doing so constituted sufficient notice). And, in Manglass v. Rhode Island Department of Human Services, No. 03-0125 (R.I. Super. Oct. 6, 2003), the parents of Madeleine Manglass, a learning disabled child with Williams Syndrome, appealed the Rhode Island Department of Human Services decision reducing the provided number of hours of home-based therapeutic services from 40 to 15. Judge Thompson remanded the case back to the agency for further determination of how many hours would best serve the needs of the child. She also reserved judgment on awarding plaintiffs' attorney fees until final resolution of the matter.

In nominating Judge Thompson to the First Circuit Court of Appeals, President Obama selected a thoughtful and fair-minded judge. Her record indicates that she approaches cases with an open mind, and considers the law and facts carefully before ruling. We commend the President for picking a nominee with a strong voice who is committed to our nation's core constitutional values.

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¹ Rhode Island district court jurisdiction is limited to small claims, violations of municipal ordinances and regulations, misdemeanors where the right to a jury trial has been waived, violations of state and local housing codes, appeals from rulings of the state tax administrator and other regulatory agencies and boards, and violations and hearings on involuntary hospitalization under the mental health, drug abuse, and alcoholism laws. Appeals from district court decisions go to the Rhode Island superior court for trial de novo. Where a defendant invokes the right to a jury trial, the case is transferred to superior court.

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» AFJ Report on O. Rogeriee Thompson (pdf)