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November 6, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Harriett R. Taylor, Trial Judge.

Ferren, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

The question presented is whether counsel fees may be awarded to an employee, whom the District of Columbia hired after January 1, 1980, and who has successfully contested an adverse personnel action against him before the Office of Employee Appeals (OEA) and the Superior Court. We hold that they may.


On June 21, 1981, appellant Vartan Zenian began his employment as a financial auditor with the Office of the D.C. Auditor. On January 4, 1985, he was dismissed for alleged inefficiency, insubordination, and dishonesty. *fn1 He filed a timely appeal with the OEA. On September 30, 1986, almost twenty-two months later, an OEA hearing examiner found that Mr. Zenian had engaged in insubordination, but held in Mr. Zenian's favor with regard to the allegations of inefficiency and dishonesty. The hearing examiner ruled that the appropriate sanction was a five-day suspension. Neither Mr. Zenian nor the Auditor filed a petition for review with the OEA, and the decision became final on October 16, 1986.

The Auditor appealed the OEA's decision to the Superior Court and, on February 10, 1987, Judge Eugene Hamilton affirmed it. Mr. Zenian was ordered reinstated and awarded back pay for the period that he was unemployed.

Mr. Zenian then requested the OEA to award him $16,439.90 in counsel fees. On, September 22, 1989, the hearing examiner declined to make such an award, holding that she lacked statutory authority to do so. She relied on Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975) and Launay v. Launay, 497 A.2d 443 (D.C. 1985). On September 21, 1989, *fn2 the Board issued an order stating simply that "Employee's request for attorney fees is denied."

Mr. Zenian next sought review of the OEA's decision in the Superior Court. On July 16, 1990, that court issued a written Memorandum Opinion and Order affirming the OEA's decision. The Judge held that she had no statutory authority to award counsel fees, and was constrained from making such an award by the "American Rule" as applied in our then very recent decision in Schlank v. Williams, 572 A.2d 101, 108 (D.C. 1990). Citing Freeman v. District of Columbia Dep't of Employment Servs., 568 A.2d 1091, 1093 (D.C. 1990), the Judge also held that the OEA's decision was neither plainly erroneous nor otherwise contrary to established legal doctrine. This appeal followed.


The rights of District of Columbia employees in personnel actions arising out of their employment are governed by the Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-601.1 to 1-637.2 (1987). The CMPA was designed to replace an existing personnel system which was said to be in "disarray" and "chaos" -- an "'inefficient hodge-podge system ignored the rudimentary merit rules' and 'awkwardly meshed' the District personnel apparatus with the federal personnel system." District of Columbia v. Thompson, 593 A.2d 621, 632 (D.C. 1991) (quoting COUNCIL OF THE DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA COMPREHENSIVE MERIT PERSONNEL ACT OF 1978, COMM. REPORT ON BILL NO. 2-10, at 26 (July 5, 1978)) (insertions in original). The state of the law under the CMPA, however, has yet to become a model of luminous clarity.

Prior to the effective date of the CMPA, *fn3 the Federal Back Pay Act (FBPA), now codified at 5 U.S.C. § 5596 (1988), applied to all employees of the District of Columbia government. Id. § 5596 (a)(5); District of Columbia v. Hunt, 520 A.2d 300, 302-03 (D.C. 1987) (Hunt I). *fn4 The CMPA purported to supersede the FBPA as to District employees. *fn5 Insofar as this attempted supersession applied to employees hired prior to January 1, 1980, it ran afoul of the Home Rule Act, D.C. Code § 1-242(3) (1987), which "provides a floor for benefits under the [C.M.P.A.], equal to those applicable to federal employees immediately prior to enactment of District personnel legislation." Hunt I, supra, 520 A.2d at 303 (citation and internal quotation marks omitted); see American Fed'n of Gov't Employees v. Barry, 459 A.2d 1045, 1049 (D.C. 1983).

The critical development in this case, ignored by the hearing examiner, the OEA, and for all practical purposes by the trial court, is that effective March 4, 1981, the CMPA was amended by D.C. Law 3-130, 1979-1980 D.C. Stat. 544, now codified at D.C. Code § 1-612.4 (1987). Law 3-130 requires the Mayor to develop a new compensation system for all employees in the Career and Excepted Services. D.C. Code § 1-612.4 (a) (1987). The statute further directs, subject to a proviso not here relevant, that

until such time as a new compensation system is approved, the compensation system, including the salary and pay schedules, in effect on December 31, 1979, shall continue in effect.

Id. § 1-612.4 (e).

Because the entire period of Mr. Zenian's employment with the District took place after March 4, 1981, the effective date of Law 3-130, any eligibility for counsel fees which he may have depends on the effect of that statute. Because Law 3-130 "jumps back" to the end of 1979, Mr. Zenian, in order to recover his counsel fees, must have been eligible to do so under the "compensation system" in effect on December 31, 1979. It is undisputed that on that date, the day immediately preceding the effective date of the relevant CMPA provisions, the rights of District of Columbia employees were governed by the FBPA. See Memorandum of the Corporation Counsel, July 15, 1981, at 2. That Act contained an explicit provision for counsel fees. *fn6 The question now before this court is whether this counsel fee provision is a part of a "compensation system" as that term is used in § 1-612.4 (e).

The District contends that it is not. It relies on § 1-612.4 (b), which provides that "this new system [which the Mayor is to develop] shall include, but need not be limited to, provisions for basic pay, pay increases based on quality and length of service, premium pay, allowances, and severance pay." Since counsel fees are not specifically mentioned and are different in kind from the enumerated examples, the District asks us to invoke the maxim known as ejusdem generis *fn7 and exclude counsel fees from the term "compensation system."

But as we recently noted in Edwards v. United States, 583 A.2d 661, 664 (D.C. 1990),

Latin maxims will only take us so far, however; 'the crux of the matter is that the rule of ejusdem generis is only a constructionary crutch and not a judicial ukase in the ascertainment of legislative intention.' State v. Small, 99 N.H. 349, 351, 111 A.2d 201, 202 (1955). *fn8

In the present case, the Council's use of the words "need not be limited to" suggests that the Council did not intend a narrow construction of the term "compensation system." "The doctrine [of ejusdem generis] is not a rule of substantive law: it is merely a rule of construction to be used as an aid to interpretation when intention is not otherwise apparent." Hodges v. United States Fidelity & Guar. Co., 91 A.2d 473, 476 (D.C. 1952) (footnotes omitted and emphasis in original); 2A SUTHERLAND, (supra) , § 47.22, at 187.

The District's interpretation is, in our view, foreclosed by our decision in Hunt I. The question in that case was whether a District employee hired prior to January 1, 1980, may recover counsel fees after successfully litigating a personnel action. The District contended that he could not, because the FBPA had been superseded by the CMPA, and because counsel fees were not a concrete benefit which the Council was required to preserve under the Home Rule Act. In examining the character of the FBPA's counsel fee provision, we distinguished between "concrete statutory entitlements and benefits on the one hand and statutory processes, mechanisms or procedures used in personnel administration on the other." Hunt I, supra, 520 A.2d at 303. We concluded that counsel fees constitute a "concrete personnel entitlement or benefit that the District must retain, or replace with an equivalent alternative pursuant to [the Home Rule Act]." Id. at 304. We described such fees as "a restitutionary form of compensation for employees who are forced to litigate District personnel actions later determined to be improper." Id. We went on to hold that

the District therefore cannot supersede the Back Pay Act as applied to pre-January 1, 1980, employees, since there is no current back pay provision in the CMPA to replace it. The District has recognized on several occasions that the Back Pay Act must remain in force until a replacement is found. Mayor's Memorandum, Number 81-53, July 17, 1981, at 2; Memorandum of the Corporation Counsel, July 15, 1981, at 2. However, the District now apparently attempts to argue that it may selectively supersede those portions of the act relating to attorney's fees. It may not do so until such benefits are replaced with equivalent alternatives in the CMPA for these pre-1980 employees, who previously enjoyed the federal entitlement. D.C. Code §§ 1-242 (3), -602.4 (a) (1981).

Id. at 304.

The District has suggested that even if the FBPA in general was a part of the "compensation system" in effect on December 31, 1979, the counsel fee provisions of that act should be severed from the rest of the statute and be held not to be a part of that system. We find no reason to follow this suggestion. We held in Hunt I that the FBPA is not to be applied in a piecemeal fashion, and that its counsel fee provisions are an integral part of the Act as a whole and may not be severed from it. Hunt I, supra, 520 A.2d at 303-04.

Hunt I addressed the rights of employees hired prior to January 1, 1980, and its immediate focus was on the interplay between the CMPA and the Home Rule Act. Mr. Zenian was hired in 1981, and the provisions of the Home Rule Act addressed in Hunt I therefore have no application to him. We nevertheless conclude that the court's analysis in Hunt I of the character of the FBPA provision for counsel fees cannot be reconciled with the District's contention here that the right to recover such fees was not a part of the compensation system in effect on December 31, 1979. *fn9

Relying on the "American Rule," which provides that in the absence of express statutory authorization, each party is ordinarily responsible for his or her own counsel fees, see Schlank, supra, 572 A.2d at 108, the District insists that the OEA and the trial court correctly held that no such fees could be awarded in this case. It is true that the CMPA makes no express mention of counsel fees as such. Section 1-612.4 (e), however, explicitly incorporates by reference the "compensation system . . . in effect on December 31, 1979," which, as we have seen, includes the FBPA. The FBPA, moreover, contains an express provision for counsel fees, and we have held that this provision was part of the December 31, 1979, compensation system. We are of the opinion that this meets the requirements of Schlank and Alyeska. *fn10

Finally, the District asks us to defer to the OEA's expertise in interpreting its own statute. Superior Court Agency Review Rule 1 (g) provides that the court "shall not set aside the action of the agency if supported by substantial evidence in the record as a whole and not clearly erroneous as a matter of law." (Emphasis added.) We agree with the principle, but not with its proposed application here.

The Superior Court Rule on which the District relies is no more than a restatement of familiar legal doctrine. As we recently reiterated in McCulloch v. District of Columbia Rental Hous. Comm'n, 584 A.2d 1244, 1248 (D.C. 1991), courts must defer to an agency's interpretation of the statute it administers, as long as that interpretation is reasonable and not plainly wrong or inconsistent with its legislative purpose. The corollary of this proposition, however, is that "we are not obliged to stand aside and affirm an administrative determination which reflects a misconception of the relevant law or a faulty application of the law." Thomas v. District of Columbia Dep't of Labor, 409 A.2d 164, 169 (D.C. 1979) (emphasis added) "An order may not stand if the agency has misconceived the law." Committee for an Indep. P-I v. Smith, 549 F. Supp. 985, 989 (W.D. Wash. 1982); see also Public Employees Retirement Sys. v. Betts, 492 U.S. 158, 171 (1989).

In many instances, a "misconception of the relevant law," like beauty or the lack thereof, lies in the eye of the beholder. In this case, however, we think that the existence of such a misconception can be demonstrated by more objective means. The OEA wrote no opinion in this case, but simply affirmed the decision of the hearing examiner. In that decision, the examiner held that she was without statutory authority to award counsel fees, but never addressed, considered, or even cited the provisions of § 1.612.4 (e) -- the sole statute, so far as we are aware, on which a finding of such authority could reasonably be predicated. Since neither the examiner nor the OEA construed this statute, there is simply no administrative construction to which this court might accord any weight. *fn11


For the foregoing reasons, the decision of the trial court is reversed. The case is remanded to the trial court with directions to vacate the decision of the OEA and to remand the case to the OEA for further proceedings consistent with this opinion.

So ordered. *fn12

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