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White v. District of Columbia

June 10, 2004

CHESTER W. WHITE, APPELLANT,
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CA6761-97) (Hon. Linda Kay Davis, Trial Judge)

Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued February 19, 2004

In this action for fraudulent misrepresentation brought in the Superior Court by Chester W. White against the District of Columbia and Angela Avant, the District's former Inspector General, the jury returned a verdict in favor of the defendants, and the trial court entered judgment on the verdict. On appeal, White challenges certain evidentiary and other rulings by the trial judge, and he also asserts that the judge erroneously instructed the jury. We do not reach White's substantive claims, for we conclude that the trial court was without subject matter jurisdiction over White's action. Accordingly, we vacate the judgment and remand the case with directions to dismiss White's suit for lack of jurisdiction.

I.

In 1996, Mr. White, who was fifty-seven years of age, retired from the federal government to take a position with the District of Columbia's Office of Inspector General, then headed by Ms. Avant, at an annual salary of $91,000. On the basis of his age and prior service, he was entitled to a federal pension of $60,000 per year.*fn2 White hoped, and apparently expected, to receive both his federal annuity and his District of Columbia salary, for a total of $151,000 per year. Federal law directed at "double-dipping" provides that "[i]f an annuitant . . . becomes employed in an appointive or elective position . . . [a]n amount equal to the annuity allocable to the period of actual employment shall be deducted from his pay." 5 U.S.C. § 8344 (a); see also 5 C.F.R. § 837.303 (a). *fn3

The gravamen of White's claim in the present suit, which was filed on August 29, 1997, is that Ms. Avant falsely represented to him, before he accepted the position in her office, that she had obtained a waiver from the federal government of the provision requiring an offset or deduction. White alleged that he had relied on Ms. Avant's representation when he agreed to take the job. White requested an award of compensatory and punitive damages. *fn4

White's action originally came before Superior Court Judge Ann O. Keary. On December 12, 1997, the judge stayed the action to permit White to pursue an administrative remedy pursuant to the Comprehensive Merit Personnel Act (CMPA).*fn5 On December 31, 1997, White filed an "appeal" with the Office of Employee Appeals (OEA). At the time White did so, however, there had been no final action by an agency from which an "appeal" could be taken; indeed, there has been no such final agency action to the present date.

On November 8, 1999, an OEA Senior Administrative Judge issued an "Order to Employee Regarding Jurisdiction." This Order provided, in pertinent part, as follows:

My review of the file reveals a jurisdictional problem. The matter that is the subject of the Court case concerns Employee's claim that he was mislead [sic] by Agency as to the salary he would receive upon commencing his tenure with Agency. This type of claim is the proper subject of a grievance. This Office, at the time this petition was filed, had jurisdiction over "a final Agency decision . . . resolving a grievance." D.C. Code Ann. § 1-606.3(a) (1992 repl.) (emphasis added). However, the record currently before me contains no evidence that Employee initiated the grievance process with Agency either before or after the Court's Order, let alone received the "final Agency decision" on such grievance that would trigger our jurisdiction. Thus, it appears that the petition for appeal is premature. In the absence of a final Agency decision, the Office has no jurisdiction over this appeal. Employee is advised that the Order of the Court is not a "final Agency decision," nor does it give this Office jurisdiction over the matter.

Therefore, Employee is hereby ORDERED to submit to me, by the close of business on November 18, 1999, a copy of any grievance filed with Agency on this matter, and a copy of a final Agency decision on that grievance.

(Emphasis in original.)

In response to this order, White agreed that there was a "jurisdictional problem," but he disagreed with the Administrative Judge's characterization of that problem. According to White, OEA lacked jurisdiction because that Office "cannot grant the relief that Employee seeks: waiver of the federal annuity offset provisions and the restoration of money denied him by virtue of the application of the offset provisions." White asserted that "[t]he District government does not control the relief that would restore the money deducted as an offset from the Employee's salary."

On December 21, 1999, the Administrative Judge ruled that the OEA lacked jurisdiction over White's case. He noted that at the time White's submission was filed, an employee had the right to appeal to the OEA, inter alia, from "a final agency decision . . . resolving a grievance." D.C. Code § 1-606.3 (a) (1992 Repl.). *fn6 A "grievance" was defined in D.C. Code ยง 1.603.1 (10) (1992 Repl.) as "any matter under the control of the District government which impairs or adversely affects the interest, concern, ...


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