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06/17/93 EUGENE M. ZOGLIO v. DISTRICT COLUMBIA

June 17, 1993

EUGENE M. ZOGLIO, PETITIONER
v.
DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS' RETIREMENT AND RELIEF BOARD, RESPONDENT



On Petition for Review of a Decision of the District of Columbia Police and Firefighters' Retirement and Relief Board

Before Schwelb, Farrell and King, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Petitioner, a former member of the Metropolitan Police Department (MPD), petitions for review of a decision of the Police and Firefighters' Retirement Board (the Board) denying his request to reinstate his disability annuity, which was terminated when his earnings from employment rose above the statutory limitation. D.C. Code § 4-620 (a)(1) (1988). The Board denied the request because petitioner had failed to show that his earning capacity again fell below the statutory earnings limitation. § 4-620 (a)(2). Petitioner contends (1) that the Board misconstrued the Police and Firefighters' Retirement and Disability Act (the Act), D.C. Code §§ 4-601 to 4-634, *fn1 and (2) that, if construed in this fashion, the statute violates principles of equal protection as applied to retirees in petitioner's class. We reject both arguments and affirm.

I.

After serving as a member of the MPD from March 5, 1958, to October 1, 1970, petitioner retired on disability at the age of 33 *fn2 as a result of a psychiatric disorder aggravated by the performance of his duties as a police officer. Petitioner began receiving a disability annuity as provided by the Act. D.C. Code § 4-616. Effective May 27, 1984, however, the Board terminated his annuity pursuant to D.C. Code § 4-620 (a), finding that his earning capacity had been restored in 1981, before his fiftieth birthday. *fn3 D.C. Code § 4-620 (a)(1) provides in relevant part:

If any annuitant retired under § 4-615 or 4-616 [both providing for a disability annuity], before reaching the age of 50, recovers from his disability or is restored to an earning capacity fairly comparable to the current rate of compensation of the position occupied at the time of retirement, payment of the annuity shall cease:

(C) Forty-five days from the date of the determination that he is so restored . . . .

Section 4-620 (a)(2) provides:

Earning capacity shall be deemed restored if, . . . in any calendar year in the case of an annuitant who was an officer or member of the Metropolitan Police force or the Fire Department of the District of Columbia, the income of the annuitant from wages or self-employment or both shall be equal to at least 80 per centum of the current rate of compensation of the position occupied immediately prior to retirement. Nothing in this section shall preclude such member from having an annuity reestablished if his disability recurs, or when his earning capacity is less than 80 per centum of the rate of compensation of the position occupied immediately prior to retirement for any full year thereafter.

On December 27, 1991, petitioner applied for reestablishment of his annuity. Although conceding that his income had not fallen below 80 percent of the current rate of compensation for his former position, as required by § 4-620 (a)(2), he contended that the earning restrictions no longer applied to him because he had reached the age of 50. Petitioner maintained, in other words, that a disability retiree is entitled to have his annuity reinstated automatically when he reaches age 50, regardless of whether his earning capacity has been restored in the meantime. The Board rejected this reading of the statute and denied petitioner's request because he had not demonstrated (or even claimed) that his income had fallen below the level set by § 4-620 (a)(2).

II.

As the text quoted above makes clear, § 4-620 (a)(1) sets forth two conditions upon which payment of a disability annuity "shall cease," both of which operate before the annuitant reaches age 50: recovery from the disability and restoration of earning capacity as defined by the statute. Section 4-620 (a)(2) sets forth, two corresponding conditions upon which the annuity, once terminated, can he "reestablished": recurrence of the disability and reduction of income below the statutory percentage ceiling. Unable to avail himself of these express conditions, petitioner urges us to find implicit in § 4-620 (a), or the Act as a whole, a third and considerably broader condition on which a disability annuity is reinstated: when the retiree reaches age 50. At that point, petitioner contends, the disability annuity "unconditionally vest." As did the Board, we reject this effort to rewrite the statute.

In an earlier case construing § 4-620 (a), we cited and applied the principle that "courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute." McMullen v. Police & Firefighter's Retirement & Relief Bd., 465 A.2d 364, 366 (D.C. 1983) (citations omitted). Moreover, in construing any statute, we follow the principle that "if the statutory language is clear, it is ordinarily conclusive, and . . . in the absence of persuasive evidence to the contrary, we are not empowered to look beyond the plain meaning of a statute's language in construing legislative intent." Id. (citations and internal quotation marks omitted). See also Reves v. Ernst & Young, 122 L. Ed. 2d 525, 113 S. Ct. 1163, 11 (1993); Parreco v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989).

Section 4-620 (a) states that if an annuitant recovers from the disability or his earning capacity is restored before age 50, "payment of the annuity shall cease." It does not state that payment "shall be suspended," "shall cease temporarily," or "shall be deferred." It likewise conditions reestablishment of the annuity on two specific events, no others. Given the precision with which ยง 4-620 (a) is drafted, specifying both the conditions on which payment of the annuity ceases and the conditions on which it may be reestablished, its failure to afford any textual support for an entitlement to automatic ...


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