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October 17, 1991


Appeal from the Superior Court of the District of Columbia; Hon. George W. Mitchell, Trial Judge

Steadman and Schwelb, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Schwelb

This controversy has been around a while -- more than fourteen years, to be exact -- but the journey still may be far from over. Administrative law can be procedurally baffling, and it often takes a long time before the court is able to reach the merits of the controversy. This is such a case. Although we are reluctant to add another procedural hurdle to its resolution, we are constrained by the applicable statute, shades of Jarndyce v. Jarndyce *fn1 notwithstanding, to do just that.

In September 1977, appellant Annie Montgomery was terminated from her employment as an assistant principal with the District of Columbia Public Schools. Seeking reinstatement and back pay, she invoked the grievance and arbitration procedures of the collective bargaining agreement between the Board of Education (the Board) and the union of which Ms. Montgomery was a member. The Board ruled against Ms. Montgomery.

On February 14, 1980, Ms. Montgomery filed an action in the Superior Court challenging her dismissal. She contended that the Board had discharged her without a written recommendation by the Superintendent, in violation of D.C. Code § 31-102 (1973). *fn2 The gravamen of her claim was that her termination had been procedurally defective. Agreeing with Ms. Montgomery, Judge Belson, then a Judge of the Superior Court, ordered the District of Columbia to reinstate her and to award back pay.

On the District's appeal, this court agreed that the Board had failed to comply with § 31-102, but held that reinstatement and back pay were premature where only procedural error had occurred. District of Columbia v. Montgomery, 453 A.2d 808 (D.C. 1982) (per curiam) [Montgomery I]. The rationale for our holding was that "discharged public employees are not entitled to back pay and reinstatement if they would have been discharged even if they had been accorded procedural due process." District of Columbia v. Gray, 452 A.2d 962, 965 (D.C. 1982). *fn3 Concluding that a "renewed proceeding before the Board . . . enable the required procedure of dismissal to be followed," Montgomery I, supra, 453 A.2d at 808, we remanded the case to the trial court with directions to "remand in turn . . . to the Superintendent of Schools and the Board of Education for compliance with D.C. Code 1973 § 31-102." Id. at 808-09. This court also directed the Superior Court to retain jurisdiction for any further hearing which it might deem appropriate. Id. at 809. On December 15, 1983, in compliance with this court's mandate, the Superior Court remanded the case to the Superintendent and the Board for further proceedings.

Following protracted Discussions regarding the scheduling of a hearing date, Ms. Montgomery asked the trial court to hold the District in civil contempt for failure to comply with the order of December 15, 1983. *fn4 She alleged that the District had improperly failed to schedule a hearing as directed by the court. Ms. Montgomery also requested an order reinstating her to her position pending completion of the proceedings on remand. On September 23, 1985, Judge Weisberg declined Ms. Montgomery's request to hold the District in contempt, finding that the District had offered a reasonable explanation for the delay in initiating a hearing. He also denied Ms. Montgomery's request for reinstatement pendente lite, reasoning that this court's decision in Montgomery I precluded him from granting such relief. Judge Weisberg did, however, order that any renewed termination proceedings be instituted on or before October 15, 1985.

On October 11, 1985, the Superintendent instituted such proceedings against Ms. Montgomery, who was served on that date with a notice of proposed adverse action. A hearing was scheduled for December 19, 1985. At the request of Ms. Montgomery's attorney, the hearing was rescheduled for January 1986. The hearing examiner was forced to withdraw on account of scheduling problems, however, and the hearing was set for April 28, 1986.

In the meantime, Ms. Montgomery filed a second motion requesting the court to hold the District in civil contempt of the Superior Court's original order on remand. She maintained that proper procedures were still not being followed and that she was entitled to reinstatement, in accordance with Rule 3.7 of the Board of Education Adverse Action Rules, *fn5 pending a final administrative determination. On February 23, 1986, Judge Graae denied Ms. Montgomery's motion and ruled that reinstatement was foreclosed by Montgomery I and Gray. Judge Graae found it to be "clear that [Ms. Montgomery] is not entitled to . . . reinstatement unless the termination proceeding that's now pending, through that proceeding, it is found that, in fact, she was improperly terminated." Judge Graae also held that this court's decision in Gray took precedence over the Board's internal rules of procedure.

Ms. Montgomery's case finally came on for a hearing before a Board of Education hearing examiner in late April 1986. On May 20, 1986, the hearing examiner issued his findings and recommended that Ms. Montgomery's termination be sustained. On June 6, 1986, Ms. Montgomery filed exceptions to the examiner's report and challenged the adequacy of the findings. Specifically, she claimed that the examiner's Conclusions were without "foundation or support." The Board apparently agreed with Ms. Montgomery's contention that the report did not contain adequate findings and, on June 23, 1986, remanded the record to the examiner with instructions to prepare a new and more detailed report. *fn6 On January 12, 1987, the hearing examiner issued a revised report which contained additional findings of fact, and in which he adhered to his original Conclusion on the merits. On February 10, 1987, the Board sustained the hearing examiner's revised findings and ordered Ms. Montgomery's termination for cause.

Ms. Montgomery did not appeal from the Board's order or from either of the trial court orders denying her reinstatement during the pendency of the review process. Indeed, Ms. Montgomery took no action whatever in the District of Columbia courts for a twenty month period following the Board's decision. *fn7 On October 4, 1988, however, she filed a petition for a writ of mandamus in the Superior Court challenging the Board's actions on remand. Although she did not specifically address the Board's determination of the merits of her termination, she alleged numerous procedural improprieties on the part of the Board during the proceedings on remand. The Board moved to dismiss the petition. At a hearing on this motion before Judge Mitchell, Ms. Montgomery's main contention was that the Board had violated its internal rules by not placing her on active duty status pending the outcome of the remand proceedings. Judge Mitchell denied Ms. Montgomery's petition, without additional elaboration, "as barred by the doctrine of res judicata." This appeal followed.


In 1979, the Council enacted the Comprehensive Merit Personnel Act (CMPA) D.C. Law 2-193, now codified as D.C. Code §§ 1-601, et seq. (1987). Section 1601(c) of the CMPA, D.C. Code § 1-617.1(c), provides that

the Office of Employee Appeals shall be the final administrative authority with respect to adverse action appeals by all District employees, subject to judicial review.

The OEA was established by § 1-606.1 et seq., which became effective on December 3, 1980. See D.C. Code § 1-637.1(i); 27 D.C. Reg. 4349-4370 (Oct. 3, 1980); 27 D.C. Reg. 5449 (Dec. 12, 1980). By February 10, 1987, when the Board issued the decision which Ms. Montgomery now seeks to overturn, the OEA had been in operation for more than six years. Ms. Montgomery did not, however, seek review of the Board's order by the OEA.

On January 24, 1991, this court, acting sua sponte, issued an order directing the parties to address the question whether the Superior Court had authority to decide the case in light of Ms. Montgomery's failure to seek OEA review. Ms. Montgomery filed a response in which she took the position that OEA review was in fact required. The District, however, contends inter alia *fn8 that the CMPA is inapplicable because Ms. Montgomery was terminated in 1977, more than three years before OEA review was available, and because, according to the District, the OEA has "consistently construed D.C. Code § 1-637.1 as limiting its jurisdiction to cases in which personnel actions were initiated on or after December 4, 1980." The District's argument is predicated on the apparent assumption that the question whether Ms. Montgomery's appeal from a 1987 decision is to the OEA or to the court turns on the date of her underlying dismissal. This is not necessarily so.

In the present case, the order of the Board of which Ms. Montgomery seeks review was entered in 1987, seven years after the effective date of the CMPA. The proceedings before the hearing examiner at which errors are alleged to have been made took place in 1986. The notice of proposed adverse action which brought the controversy before the hearing examiner was served on Ms. Montgomery in 1985. We think it questionable whether review of the Board's order in such a case should be governed by procedures which were abolished by statute many years ago.

The enactment of the CMPA, *fn9 and the creation in the new Act of the OEA, effected a change in the tribunal which would in the first instance consider the legality of a challenged adverse action. A statute providing for a different tribunal is deemed procedural in nature, for it merely alters the remedy and does not impair vested rights. Edwards v. Lateef, 558 A.2d 1144, 1146 (D.C. 1989) (citing Montana Power Co. v. Federal Power Comm'n, 144 U.S. App. D.C. 263, 271, 445 F.2d 739, 747 (1970) (en banc), cert. denied, 400 U.S. 1013 (1971)).

"Unless a contrary legislative intent appears, changes in statute law which pertain only to procedure are generally held to apply to pending cases." 2 N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.09, at 396 (4th rev. ed. 1986); Sikora v. American Can Co., 622 F.2d 1116, 1119 (3d Cir. 1980). This is true although the transaction which precipitated the dispute took place prior to the enactment of the statute. Yasuna v. Miller, 399 A.2d 68, 72n.7 (D.C. 1979); United Sec. Corp. v. Bruton, 213 A.2d 892, 893-94 (D.C. 1965). "Statutes which relate to remedies apply retrospectively *fn10 unless vested right is destroyed." Edwards, supra, 558 A.2d at 1146 (citation omitted). As Chief Judge Andrews concisely put it for the New York Court of Appeals almost a century ago in Lazarus v. Metropolitan Ry. Co., 145 N.Y. 581, 585, 40 N.E. 240, 241 (1895), "by the general rule of law, the procedure in an action is governed by the law regulating it at the time any question of procedure arises." This must be the correct rule "unless procedure is to be involved in chaos." People ex rel Central New England Ry. Co. v. State Tax Comm'n, 261 App. Div. 416, , 26 N.Y.S.2d 425, 426 (3d Dept. 1941). *fn11 In the present case, the law regulating review of adverse actions at the time review was sought was the CMPA, which ordains the OEA as the proper tribunal to which the initial appeal must be made.

The District contends that the OEA has itself construed the CMPA as conferring jurisdiction upon it only in cases in which personnel actions were instituted on or after December 4, 1980. See, e.g., Employee v. Agency, No. OEA-1601-0140-81, 30 D.C. Reg. 588 (Oct. 25, 1982); Employee v. Agency, No. OEA-1602-0139-81, 30 D.C. Reg. 1634 (March 3, 1983). *fn12 Even under its own approach, however, the OEA should arguably exercise jurisdiction in the present case. The Office stated in its October 25, 1982 decision cited above that

Employee was notified of the proposed adverse action by letter dated November 12, 1980. Since the action of the agency was commenced prior to December 3, 1980, the Office of Employee Appeals . . . has no jurisdiction over this action.

30 D.C. Reg. at 588. Here, the notice of proposed adverse action was served on Ms. Montgomery long after the effective date of the Act. Although that notice stated, in accordance with Montgomery I, that the Board proposed to proceed in conformity with D.C. Code § 31-102 (1973), since repealed, we do not think that this direction, which deals with the applicable substantive law as to what steps are required in order to discharge an employee, is dispositive of the prospective procedural question of the proper tribunal to which an appeal from the Board's order must be taken. *fn13

In sum, we are of the opinion that, at least arguably, Ms. Montgomery was obliged to seek review of the Board's order by the OEA rather than by the Superior Court. Ms. Montgomery herself has now taken the position that OEA review is required. We conclude that the OEA should at least be accorded the opportunity to exercise jurisdiction in this case.


Ms. Montgomery did not seek review by the OEA. If such review is required, then she failed to exhaust her administrative remedies. One might think that this would end the matter, but it may not.

Section 336.4(e) of the CMPA, D.C. Code § 1-606.4(e) (1987), provides as follows:

Each agency shall advise each employee against whom action is taken adversely affecting the employee of his or her right to appeal to the Office as provided in this subchapter.

Where the required procedure is not followed, "the proper course is to remand [this case] for review by the OEA without any prejudice for the earlier failure to appeal to that Office." District of Columbia v. Daniels, 523 A.2d 569, 571 (D.C. 1987) (per curiam). Accordingly, if OEA had jurisdiction, there may have been no waiver by Ms. Montgomery of her rights.

For the foregoing reasons, the case is remanded to the Superior Court to enter an order further remanding to the OEA with directions to that agency to determine whether it has jurisdiction over Ms. Montgomery's petition for review, both substantively and with respect to timeliness of filing.

So ordered.

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