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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 ...

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